I. Summary

From May 31 to June 11, 2010, an extraordinary gathering in
support of the global fight against impunity will take place at the first ever review
conference of the International Criminal Court (ICC). High-level
representatives from the court’s soon-to-be 111 states parties will meet
in Kampala, Uganda, joined by court officials, representatives of non-states
parties, the United Nations, and other intergovernmental and regional
organizations, and civil society activists from every region of the world. In
two weeks of debate and discussion, the growing ICC community will affirm the
importance of a collective commitment to bringing to justice those responsible
for the worst violations of international criminal law.

Twelve years after the signing of the Rome Statute that established the ICC,
and as its predecessor international ad hoc tribunals begin to wind down, that
affirmation is needed now more than ever.

While the court has opened investigations in five countries
and begun its first trials, this is just a start. In too many places—from Congo to
Burma, Yemen to Afghanistan—crimes that shock the world’s conscience
continue. Relief from renewed cycles of violence and high expectations for
justice, raised in part as the system of international criminal justice has
taken shape, demand a robust response from the international community.

And yet, new priorities—including the global economic
crisis, terrorism, and climate change—have displaced the mid-1990s’ sense of urgency that gave
birth to the ICC following genocide in Rwanda and other mass atrocities. Limits
on the reach of international justice, a perception of double standards in its
application, and the inevitable cost and length of proceedings have tested the
commitment of even the court’s strongest supporters and provided succor
to its critics.

In Kampala, the world community has the opportunity to
re-engage the fight against impunity. Doing so will require high-level
attendance and strong public support by states parties for the ICC’s
mission and recognition of the steady progress made by the court in realizing
its founders’ aspirations. It will also require, through substantive
discussions of key challenges, the identification of critical next steps to advance
the fight against impunity, including building enhanced capacity for
prosecutions at the national level. The latter can energize the practice of
international justice and attract new support. Because the review conference
will be held in Kampala, stronger links with communities affected by crimes
within the court’s jurisdiction can be forged at the same time.

In preparations over the past months, a number of states
parties have shown recognition of this unprecedented opportunity. The Bureau of
the Assembly of States Parties (ASP), which had already appointed two
facilitators for the review conference (currently Brazil and Kenya), appointed
additional country focal points to prepare stocktaking exercises addressing
cooperation (Costa Rica and Ireland), complementarity (Denmark and South
Africa), the impact of the Rome Statute system on victims and affected
communities (Chile and Finland), and peace and justice (Argentina, Democratic
Republic of Congo, and Switzerland). Strong progress has been made in developing
frameworks for these discussions.

Focal points were also appointed to encourage high-level
attendance from several of the regional groupings (Netherlands, Slovenia,
Uganda, and Venezuela) and pledges by states parties of practical and political
support to the ICC (Netherlands and Peru), and to steer the negotiation of a
high-level declaration (Mexico) to be adopted at the conclusion of a general
debate in Kampala. A separate resolution on enforcing the ICC’s sentences
of imprisonment, originally proposed by Norway and expected to be adopted in
Kampala, would encourage increased assistance between international development
agencies and states parties toward making additional facilities available to
the court.

ICC officials and civil society have contributed to these
preparations and participated in states parties’ advance deliberations,
and the court and ASP secretariat are preparing public information activities
to project conference deliberations and outcomes to a broad audience. Civil
society organizations have undertaken a number of projects—including
consultations in at least two ICC “situation” countries (countries in
which the ICC is investigating) and the preparation of side events for
Kampala—in order to bring their perspectives and expertise to bear on discussions.
This continues the strong tradition of deep civil society engagement in the
development of international justice.

The real tests of these preparations, however, lie ahead.

First, for discussions in Kampala to advance international
justice, they must be as substantive as possible. A deepened grasp of these
topics and the challenges they present is essential to more effective national
and international prosecutions of serious crimes. In the limited time remaining
before the review conference, states parties should step up their preparations,
building on or convening inter-ministerial consultations. Such preparations and
consultations will be important to refine positions and to develop a strategy
for making constructive interventions during stocktaking and related side
events at the conference. If carried out by a sufficient number of states
parties, these advance sessions will enable the discussions in Kampala to be as
rich and as productive as possible.

Second, discussions in Kampala must be made to count. A
deepened understanding of what more meaningful prosecution of serious
international crimes requires from states parties, the ICC, civil society, and
other allies must be matched in coming months and years by concrete action on a
number of fronts. Resolutions establishing regular ASP discussions on
cooperation, giving the ASP a role in facilitating complementarity efforts (that
is, helping national court systems take the lead in prosecuting serious
international crimes, with the ICC as court of last resort), and increasing the
court’s impact in affected communities would each help chart the way. States
parties will need to build on discussions in Kampala by reworking national
policies to meet the new challenges identified there. States will also need to
make good on pledges announced in Kampala. We suggest that the ASP make it a
priority to ensure follow-up on pledges and make pledging a regular feature at future
ASP sessions.

In order to assist states in fully realizing the review
conference as a milestone in the development of the ICC and an emerging system
of international justice, this report offers reflections and recommendations on
each of the four stocktaking topics.

The ICC’s success is directly related to the cooperation
it receives from states parties and intergovernmental organizations.
Without its own police force to facilitate investigations, locate witnesses,
and apprehend suspects, the ICC must rely on the cooperation of states parties
to fulfill its mandate. The ICC also requires active political support from
states parties to defend its mission, particularly in the face of unprincipled
attacks by the court’s opponents. Although there has been broad
recognition within the ASP of the importance of cooperation, the requisite support
from national authorities and political backing have not always been
forthcoming. Substantive discussion during the review conference of relevant experience
to date with the ICC and other international tribunals, identification of best
practices, and a commitment to carry these discussions forward in the ASP on a
regular basis can make a practical difference in ensuring necessary cooperation
with the court.

Discussions of complementarity in Kampala offer
perhaps the greatest opportunity to expand the fight against impunity.
Stocktaking on this issue will focus on “positive complementarity,”
the concerted international and domestic efforts to strengthen and better
enable national jurisdictions to conduct credible and effective national
investigations and trials of Rome Statute crimes. Enhanced international
assistance toward this end is essential if the ICC is to remain truly a court
of last resort, and to bridge the impunity gap that can exist in ICC situations
where only a handful of perpetrators are brought to trial by the court. States
parties, non-states parties, international organizations, the court, and civil
society each have a role to play. Discussions on positive complementarity
within the ASP are particularly appropriate: as a body of states committed to
the fight against impunity, the ASP is uniquely positioned to assess current efforts
and identify priorities for advancing prosecution of serious international
crimes in national systems, a focus that is too often lacking in broader rule-of-law
reforms.

Individuals and communities affected by the crimes under the
ICC’s investigation are the first among the court’s many
constituencies. Yet, having an impact in such communities is a unique
challenge for a court based thousands of kilometers away from where the crimes
occurred. Discussions on impact at Kampala will usefully focus attention on the
unique tools at the ICC’s disposal, including victim participation in
proceedings, and reparations and assistance to victims through the Trust Fund
for Victims. Participants will also examine the progress the court has already
made in achieving impact in affected communities. Discussions should address
what further progress is needed, while bearing in mind that the court is still
in its early phase of development, with the first full cycle of judicial
proceedings not yet concluded. Continued attention to outreach and field
engagement and greater appreciation of the importance of the prosecutor’s
selection of cases and charges is needed.

The court’s impact, however, does not depend solely on
the actions and decisions of court officials and staff. Discussions should
recognize that states parties—whether providing additional resources for
outreach and public information efforts, contributing to the Trust Fund for
Victims, supporting an enhanced ICC presence in situation countries, or
engaging with key court strategies—have important contributions to make
in maximizing the court’s impact in affected communities.

The peace and justice nexus is the fourth stocktaking
topic. The ICC’s mandate to investigate and prosecute war crimes, crimes
against humanity, and genocide in the course of ongoing conflicts has often
raised questions about the relationship between peace and justice; the call to
suspend or “sequence” justice in exchange for a possible end to a
conflict has arisen in conjunction with the court’s work in a number of
country situations. While justice is an important end in its own right, Human
Rights Watch’s research in many different conflict situations over 20 years
has also demonstrated that a decision to ignore atrocities, thus reinforcing a
culture of impunity, may carry a high price. While there are sometimes real
tensions between peace and justice, the goal of the international community
should be the careful management of this tension, rather than its exploitation.
While the topic does not lend itself to a resolution or pledges in Kampala, greater clarity on this subject is nonetheless crucial for the future of the
court’s work.

The stocktaking topics, of course, are often interconnected.
Unexecuted arrest warrants may represent a failure of state cooperation, but
may also reflect deficits in national capacity. In the absence of arrests and
trials, the ICC’s impact in affected communities is limited. Similarly,
exaggerated claims of a contradiction between peace and justice may dampen
support for the ICC’s efforts and make officials less likely to fulfill
court cooperation requests, including in the execution of arrest warrants.
Consideration of these topics on their own and as they relate to each other
will help to identify gaps in current practice and chart the way forward.

The review conference has much more on its agenda than
stocktaking. Proposed amendments and review of article 124, the Transitional
Provision, will dominate discussions in the second half of the conference.

Human Rights Watch supports the amendment
proposed initially by Belgium to extend to non-international armed conflicts
the criminalization of the use of certain weapons, including poison or poisoned
weapons; gases and all analogous liquids, materials or devices; and bullets that
expand or flatten easily in the human body (already criminalized under the Rome
Statute in international armed conflicts under article 8(2)(b)(xvii-xix)).
Human Rights Watch believes that weapons that pose an undue threat to civilian
populations should be banned regardless of whether the conflict is
international or non-international in character.

We have not participated actively in
negotiations on the crime of aggression. We believe that we are most effective
as a human rights organization if we do not opine on issues of jus ad
bellum, the lawfulness of waging war, and instead adopt, like the
International Committee of the Red Cross, an approach of strict neutrality
during armed conflicts. This neutrality enables us, without taking sides, to
focus on the conduct of armed forces in war, or jus in bello, and
thereby promote our goal of encouraging all parties to a conflict to respect
international humanitarian law. But while we have taken no position on the
definitional aspects of aggression, from the start of the preparatory committee
negotiations in 1996 we have opposed any Security Council control of the crimes
within the jurisdiction of the court. We believed then, and still do, that
control over the court’s jurisdiction—a
so-called jurisdictional filter—by
a political organ would undermine the ICC’s judicial independence.

Regardless of any jurisdictional filter, however, Human
Rights Watch has serious concerns about adoption of the crime of aggression in Kampala. Taking up prosecutions of aggression could link the ICC to highly politicized
disputes that could undermine the court’s credibility and ability to
address genocide, war crimes, and crimes against humanity. At the same time,
not taking up an aggression prosecution because of jurisdictional or resource
restrictions could also jeopardize the court’s work and credibility. On
the basis of close observation of the court, including in situation countries,
we fear that inclusion of a definition and jurisdictional filter could diminish
or appear to diminish the court’s role as an impartial judicial arbiter
of international criminal law. We urge states parties to conduct their
discussions in a way that minimizes divisiveness.

The Kampala review conference caps the first phase of the ICC’s
development. In stocktaking discussions and careful consideration of amendment
proposals, in plenary sessions on the formal agenda and in side events hosted
by governments and civil society, there will be important opportunities for
states parties to affirm their commitment to the ICC and to hold perpetrators
of the world’s worst crimes accountable for their actions. But the review
conference is also a beginning.

With the work of the international ad hoc tribunals nearing
completion, the fight against impunity and the practice of international
justice is moving into a new phase. In this next era, the role of the ICC as
the keystone of an emerging system of international justice will become
increasingly important, and consolidation of its progress is essential. Equally
necessary will be enhancing the capacity of national authorities to bring
prosecutions that extend the reach of justice. A fully realized review conference
will make significant strides on both fronts, propelling the ICC community
forward and bringing realization of the aspirations of the Rome Statute within
sight.

II. Key Recommendations

Cooperation

In preparations for Kampala and in discussions and statements at the
conference, states parties should:

Assess and discuss during the review
conference lessons learned from national experience of responding to the
court’s broad spectrum of cooperation needs. These could include
experience with putting in place legislation and national arrangements to
facilitate cooperation; responding to direct cooperation requests; concluding
framework agreements with the court; and providing political and diplomatic
support;

Consider and discuss during the review conference relevant
experience of cooperation with other international tribunals;

Affirm a commitment to the mission and mandate of the ICC
to end impunity for the crimes of most concern to the international
community;

Underscore the obligation of ICC states parties to
cooperate fully with the court, including in arrests;

Adopt a resolution on cooperation, committing to carry
forward regular discussions on cooperation within the Assembly of States
Parties (ASP), including through an ASP cooperation working group. Such a
working group could assist in spreading best practices and undertake
targeted initiatives in specific cooperation areas; and

Identify, on the basis of past experience, steps to
strengthen national arrangements on cooperation, and announce these steps
as pledges during the review conference. Pledges should indicate concrete
timelines.

Following Kampala, states parties should:

Consider reappointing the ASP focal points
on pledging selected for the review conference to ensure follow-up on commitments
made in Kampala and to develop a regular system of pledging for future ASP
sessions.

Complementarity

In preparations for Kampala and in discussions and statements at the
conference, states parties should:

Recognize the central role of the ICC as a court of last
resort in the absence of meaningful action by national authorities;

Affirm that increased international political support and
logistical assistance are needed to strengthen national capacity and political
will to prosecute serious international crimes. National prosecutions are
necessary to put the complementarity principle to work in practice and
close existing impunity gaps;

Recognize the court’s key role in catalyzing
national prosecution efforts through its close knowledge of national capacity
needs, particularly in “countries under investigation and analysis”
(countries in which the ICC is either investigating or considering whether
to open an investigation) and through the expertise the court can lend to
initiatives funded by states parties;

Underscore the need for states and funders to incorporate a
specific focus on prosecuting serious international crimes in broader rule-of-law
reform efforts, particularly in ICC countries under investigation and
analysis. States parties should specifically emphasize the necessity of
addressing both “inability” and “unwillingness” to
prosecute such crimes if further progress at the national level is to be
achieved;

Adopt a resolution at the review conference that
recognizes a role for the ASP in facilitating complementarity initiatives
and asks the court to report on its role as a catalyst for national
proceedings in order to help identify additional complementarity
opportunities;

Identify complementarity initiatives that states parties
should consider funding or participating in and bring these initiatives to
the review conference for further discussion; and

Identify other pledges relevant to complementarity and
announce these pledges at the review conference. Pledges should indicate
concrete timelines.

Following Kampala, states parties should, as appropriate,

Consider how best to position the ASP to strengthen
national capacity for the prosecution of serious international crimes.
This could include establishing additional ASP mechanisms to promote complementarity
initiatives;

Request annual reporting from the court on its activities
to catalyze national prosecution efforts;

Privately and publicly express political support for
national prosecutions, both bilaterally with the states concerned and in key
political forums like the EU, the African Union, and the UN Security
Council and General Assembly; and

Support local civil society efforts to press for national
prosecutions.

Impact of the Rome Statute system on victims and
affected communities

In preparations for Kampala and in discussions and statements at the
conference, states parties should:

Reaffirm the central recognition of the rights of victims
in the Rome Statute;

Welcome the progress made by the court in realizing in
practice the rights of victims;

Affirm the fundamental importance of ensuring that
investigations and prosecutions carried out at the international level are
meaningful and have resonance with communities where the crimes have been
committed, while recognizing the challenges inherent in doing so given
that ICC procedures are often complex and take place in The Hague, far
from the affected communities;

Commit to supporting, including with the necessary
financial resources, the ICC’s efforts to increase its impact,
including through deepened field engagement, strengthened outreach, and
robust investigations that, evidence permitting, resonate with affected
communities in terms of the individuals who are targeted and the charges
brought against them;

Adopt a resolution on the impact of the Rome Statute
system on victims and affected communities. The resolution should
highlight the importance of delivering effective justice to victims in the
context of fair and impartial proceedings and should send a powerful
message that the ICC community places a high priority on victims’
rights and interests; and

Identify pledges of increased support relevant to
increasing such impact and announce these pledges at the review
conference. Pledges should indicate concrete timelines.

Following Kampala, states parties should:

Encourage the court to develop as part of its strategic
planning process a tool that would periodically assess the court’s
impact in affected communities and identify steps that could be taken to
improve impact; and

Increase support in the court’s budget for outreach
and field-based activities.

Peace and Justice

In preparations for Kampala and in discussions and statements at the
conference, states parties should:

Confirm that justice is a crucial component
of lasting peace, as well as an important international priority in its own
right;

Reflect on experience to date in pursuing
these two objectives simultaneously to end conflicts where horrific crimes have
been committed; and

Contribute to meaningful discussion at the
review conference on how tensions that may arise between peace and justice can
be successfully managed to ensure an outcome that achieves both objectives.

Following Kampala, states parties should:

Continue consultations at home and within
regional and intergovernmental organizations to promote policies that maximize
the likelihood of achieving both peace and justice in conflict resolution.

III. Cooperation

A. Introduction

The success of the International Criminal Court (ICC) is
directly related to the will of states parties and intergovernmental
organizations to support its mission. Without its own police force to
facilitate investigations, locate witnesses, and apprehend suspects, the ICC
must rely on the cooperation of states parties to fulfill its mandate.[1]
In addition to judicial cooperation and logistical support, the court needs
strong political support from its states parties and allies. This includes
mainstreaming support for the court in diplomatic relations, particularly in
relation to the situation countries under ICC investigation.

While the Rome Statute delineates an express obligation of
states parties to cooperate with the court,[2]
the cooperation required by the court is substantially more far-reaching than
responding to targeted demands for assistance. It embraces forms of cooperation
that are mandatory under the Rome Statute and those that, while discretionary (“non-mandatory”),
are every bit as essential to the court’s effective functioning.[3]
The court simply cannot succeed without active engagement by states parties
across a range of areas, whether obligatory or not, to facilitate the
ICC’s objectives.

Eight years after the Rome Statute’s entry into force,
securing and maintaining this cooperation and engagement remain key challenges
in the fight against impunity at the international level. Although cooperation
has been forthcoming in a number of areas and the Office of the Prosecutor
reports that around 85 percent of its requests for judicial cooperation are met
by states parties, a significant proportion of ICC registry requests for
assistance—including in the key area of witness relocation—do not receive
a response and some are even rejected. States report a lack of procedures at
the national level to facilitate these requests.[4]Only four of the ICC’s
13 arrest warrants have been executed, and the court has identified the
mobilization of political and diplomatic support for arrests as a key
cooperation need.[5] Such
political and diplomatic support has become all the more
important as the court faces an increasingly challenging external environment;
the arrest warrant issued by the ICC in March 2009 for Sudan’s President Omar
al-Bashir on charges of crimes against humanity and war crimes fuelled and
intensified efforts by ICC opponents to undermine not only that specific
warrant, but the court itself.

It is for this reason—the fundamental importance of cooperation—that
Human Rights Watch welcomes the planned Kampala stocktaking session on
cooperation and the focus on an exchange of best practices. These discussions
can build on the reporting done to date by the Bureau of the Assembly of States
Parties (ASP) and its focal point on cooperation, as well as the court itself,[6]
and should pave the way for ongoing discussions on cooperation within the ASP after
the review conference. We also look forward to the robust announcement of
pledges by states parties of increased political and practical support for the
court, and we encourage states parties to discuss at the review conference how
to ensure the follow-through of pledges.

Plans for stocktaking have identified particular areas of
cooperation for discussion: (1) “implementing legislation”; (2)
“supplementary agreements and arrangements and other forms of cooperation
and assistance”; (3) “challenges encountered by States Parties in
relation to requests for cooperation”; (4) “cooperation with the United
Nations and other intergovernmental bodies, including regional bodies”;
and, (5) “enhancing knowledge, awareness, and support for the Court.”[7]
Focused, concrete discussion in each of these areas—including as to the
challenges presented—could lead to enhanced understanding and state
practice. There are two important considerations to bear in mind prior to Kampala;
first, about how preparations could be carried out, and, second, about
cooperation practices to date.

B. Discussions in Kampala

In order to make discussions in Kampala as substantive as
possible, we urge governments to prepare in advance by consulting internally
and across relevant ministries and agencies on their experiences to date. While
the depth of experience with court cooperation requests varies, all states
parties should have a basis for assessing their cooperation practices to date
given the court’s broad need in multiple areas. These include putting in
place legislation and national arrangements to facilitate cooperation;
responding to direct cooperation requests; concluding framework agreements with
the court; and providing political and diplomatic support. The experience of
some states parties with other international criminal tribunals may also yield
important insights that could inform and improve cooperation practices with the
ICC. For those states parties that have not yet done so, responding to the
reissued questionnaire on the measures undertaken in respect of implementing
legislation of the Rome Statute[8] should
assist in their assessment of progress made on providing for cooperation
through national implementing legislation.

These consultations should help to advance practice within
each state party by identifying areas where improvements could be made, or
where further understanding and information is first needed. Lessons learned
through these internal consultations should also be shared in statements made
from the floor during stocktaking following the opening remarks of the
cooperation panelists, as well as during cooperation-related side events at the
review conference. Given the limited time on the agenda in Kampala for
stocktaking, states may wish to consider preparing a short written assessment
of their cooperation with the court that could be included in a report of
discussions.

While the focal points have identified some priority areas
for discussion in Kampala, we encourage states parties in their consultations
and preparations to consider steps taken and challenges encountered in
addressing the court’s full range of cooperation needs. Some states
parties have pointed to a distinction between non-mandatory and mandatory forms
of cooperation. This distinction, however, has limited bearing on the practical
needs of the court. In that spirit, we hope that discussions on cooperation at
the review conference can help to demonstrate that an expansive understanding
of cooperation is necessary to enhance support to the court.

States parties should give consideration to how discussions
on cooperation can be carried forward beyond Kampala. A resolution on
cooperation would provide an opportunity not only to affirm the cooperation
obligations of states parties, but also to identify steps to be taken after the
review conference. These could include putting in place an Assembly working
group and standing agenda item on cooperation (discussed above), increasing
support to states on putting in place adequate implementing legislation, and
committing to support the resources necessary for an enhanced court public
information strategy. The resolution could also provide for follow-up on the
pledges of increased political and practical support to the court that we
anticipate will be announced by most states parties during the review
conference. Follow-up will be necessary to ensure that these pledges result in
concrete action by states parties; we encourage the resolution to mandate the
Bureau to consider mechanisms through which this follow-up could be provided
and whether pledging should become a regular feature of future Assembly
sessions.

C. The Assembly of States Parties

The Assembly of States Parties is a body created by the Rome
Statute to provide management oversight of the administration of the court. Composed
of representatives of each state party, the ASP is required to meet at least
once a year but can meet more often as required.[9]
Among numerous functions, including administrative responsibilities such as
approval of the court’s yearly budget, the ASP is mandated under article
87(7) of the Rome Statute to consider questions of a state party’s
refusal to comply with a request by the court for cooperation.[10]
While the ASP’s development of an article 87(7) mechanism deserves priority
attention, Human Rights Watch believes that the role of the ASP in ensuring
that the ICC receives sufficient cooperation and support is not confined to
instances of non-cooperation but also includes undertaking targeted initiatives
designed to improve cooperation. As discussed below, the ASP has taken
important steps toward this end;

further developments and the establishment of an ASP working
group on cooperation are needed to consolidate this progress.[11]

1. Strengthening ASP
procedures

Over the past four years, the ASP has taken a variety of
measures to strengthen its functioning both during and outside of its annual
sessions. For example, the ASP Bureau has appointed two permanent working
groups, one in The Hague and one in New York. These working groups meet
throughout the year and facilitate substantive discussions on ICC issues as
they arise in advance of the formal ASP sessions.[12]

The ASP also has moved to longer annual sessions, which
allows more in-depth discussion and attention to broader issues like
cooperation in addition to technical items that may require decisions. To date,
cooperation has not featured on the formal agenda of an ASP session, although
informal consultations were held during recent sessions, with those
consultations during the eighth session yielding a first-ever stand-alone
resolution on cooperation.[13] Of
particular significance to cooperation, however, has been the regular addition
of a general debate at the opening of ASP sessions. The debate provides an
excellent platform for states parties to express their support for the court
and to raise matters of overarching importance regarding the ICC. General
debates can draw contributions from high-level officials and thus further
reinforce political support for the ICC and its mandate.

We expect that the general debate during the review
conference will serve a similar function, heightened by the presence of more
high-level officials than might otherwise attend an ordinary ASP session. The
anticipated adoption of a high-level declaration reaffirming commitment to the
ICC at the conclusion of the review conference’s general debate will
constitute an important source of political support beyond Kampala and would set a positive tone for further interventions in the
stocktaking exercise and in subsequent negotiations on amendments.

2. Targeted initiatives on
cooperation

In the past four years, the ASP has undertaken initiatives
to convert broad proclamations of support into sound cooperation policy and practice.
These have included preparation of a Bureau report on cooperation, appointment
of a Bureau cooperation focal point (now facilitator) with a two-year mandate
(see below), and adoption in November 2009 at its eighth session of a first
Assembly resolution. The Bureau report, in particular, provides invaluable
guidance by identifying a range of steps that states parties should take to
improve cooperation with and support for the ICC, and we discuss many of the
Bureau’s recommendations below.[14]

At its sixth session, the ASP appointed a focal point on
cooperation with a two-year mandate,[15]
Ambassador Yves Haesendonck of Belgium, and at its eighth session, the ASP
acted to put into place a facilitator to succeed the focal point.[16]
The new cooperation facilitator—Ambassador Mary Wheelen of Ireland—was
tasked, along with a co-focal point, to prepare stocktaking on cooperation for
the review conference. A cooperation resolution adopted by the Assembly during
the eighth session—the first of its kind specific to cooperation—also
provided her with an open-ended list of additional tasks during the remainder
of her mandate. These included picking up on work carried out by Haesendonck to
promote witness relocation agreements and furthering the court’s
expertise in financial investigations.In
addition, after Haesendonck’s request to the court to prepare a report
with its assessment of cooperation, the Assembly asked for an updated version
in advance of the review conference.[17] The
court’s report and its update should provide useful information to states
parties about its priority needs, and should be keep in mind by states parties
in identifying pledges of practical support to the court consistent with
meeting those needs.

The cooperation facilitator, like the focal point before
her, can play a positive role in fostering cooperation and support by helping
to bridge the gap between the court’s needs and states parties’
knowledge of and capacity to respond to them, and by stimulating discussion
among states parties both as to general lessons learned and taking forward
specific initiatives. Indeed, in proposals for the review conference, the
facilitator has emphasized the need for an exchange of best practices and has
proposed a biennial discussion of the progress achieved in cooperation as a
standing item on the ASP agenda.

Human Rights Watch fully supports such regular discussion of
cooperation, but believes it should take place more frequently than the
proposed biennial schedule. Indeed, to complement the efforts of the
facilitator and to upgrade institutional support for cooperation within the
ASP, we recommend the ASP put in place a permanent,
intersessional working group on cooperation.

An intersessional working group would offer
a number of advantages. Given the scope of the court’s cooperation requirements,
a working group is more appropriately suited to take this work forward than a
single facilitator acting on her own. The facilitator, however, could chair the
working group and take a leadership role, particularly in the development of
its first procedures and practices. A working group could also be composed of a
number of states parties representatives based in key cities, including The Hague, New York, Brussels, and Addis Ababa. The geographic reach of such a working
group would enable it to work closely with institutions providing cooperation
to the court, including the UN, the European Union, and the African Union.

Procedurally, the working group could meet
intersessionally and prepare a report for discussion and debate at the annual
Assembly session, reflecting the activities of the working group over the
previous year and proposing an action plan for the coming year. The working
group session at the Assembly would also provide an ideal opportunity for
presentation of an annual court report on cooperation identifying its needs.

Substantively, the working group could take
up specific, targeted initiatives each year, drawing on the recommendations
detailed in the Bureau report on cooperation. These initiatives could be
identified in consultation with the Bureau, and could include initiatives
similar to those set out in the cooperation resolution with regard to the
mandate of the facilitator.

A permanent working group on cooperation
would secure for this key issue a standing place on the agenda of the ASP,
providing cooperation with the profile and attention it deserves from states
parties. We recommend debate during the review conference on the merits and
structure of a cooperation working group and a review conference resolution on
cooperation calling for putting this group in place.

D. Judicial cooperation and
logistical support

Judicial cooperation and logistical support encompass a
range of critical assistance, which includes providing evidence, serving
documents, executing searches, protecting witnesses, freezing assets,
surrendering suspects, and imprisoning convicted persons. In its recent update
to its cooperation report, the court noted several areas of particular importance
when it comes to judicial cooperation. The Office of the Prosecutor (OTP)
pointed to the need for increased access to witnesses, including through the
issuance of emergency visas, and to bank records and asset tracing to
facilitate financial investigations. The registry noted the continued need for
agreements on interim release, enforcement of sentences, and witness
relocation, as well as the positive response of states to specific requests in
these areas.[18] It is
important to bear in mind that judicial cooperation includes assistance to the
defense as well as the prosecution.

Key to ensuring judicial cooperation and logistical support
is having the proper legal basis and practical arrangements in place to respond
in a timely and effective manner. Of course, political will to put the proper
legal foundation in place and to provide relevant cooperation and support is of
the essence.

A variety of means available to states parties to enhance
capacity to provide judicial cooperation and logistical support are discussed
below. Human Rights Watch strongly encourages states parties to consider these
and to promptly undertake relevant measures where they are not yet in place.

1. Implementing legislation

To give effect to the general obligation of states parties
to cooperate with the court, article 88 of the Rome Statute provides that
states parties are required to “ensure that there are procedures
available under their national law for all of the forms of cooperation”
under the statute.[19]
Legislation to implement the Rome Statute in national law, often referred to as
“implementing legislation,” is vital to meeting this requirement:
it lays a clear domestic basis for cooperation.

The absence of implementing legislation does not remove
states parties’ obligations to cooperate with the court, but makes such
cooperation dependent on ad hoc arrangements. This is vastly more complicated
and burdensome for the ICC. Unfortunately, many states parties have yet to pass
implementing legislation. These states parties should take all necessary steps
to adopt implementing legislation. This may include engaging in technical
consultations with states parties that have similar legal systems (and,
therefore, similar approaches to addressing legal issues that may arise), both
bilaterally and within regional organizations to facilitate this process. An
Assembly cooperation working group could enhance the role presently played by
the ASP secretariat (working together with the Bureau facilitators on
universality and cooperation) to increase exchange of information between
states parties on implementing legislation in order to share lessons learned,
match states parties with technical assistance needed, and create sustained
political momentum toward implementation.

2. Domestic institutional
arrangements

Putting into place effective domestic institutional
arrangements is another important way for states parties to facilitate
effective cooperation with the court.As the ASP Bureau’s report
indicates, having adequate procedures in place before an actual request is
received fosters a timely and satisfactory response.[20]
For states parties that have not previously cooperated with an international
criminal tribunal, advance thinking and planning is all the more important.
Many states parties have already established institutional arrangements to
facilitate cooperation and support. Some of these arrangements, which vary in
complexity and scope, are detailed below. We have encouraged those states that
have not yet established adequate institutional arrangements on cooperation to
identify steps needed to do so and commit to taking these steps as part of
pledges announced at the review conference.

Of course, the ICC must provide states parties with adequate
information on the cooperation and support that it needs. This is especially
important for states with less experience cooperating with tribunals and with
less understanding of what is required in practice for cooperation.[21]
In March 2007, the ICC prepared a report for the benefit of states parties
detailing some of its requests,[22]
and, as noted above, at the request of the ASP, the court has prepared an
update of its fall 2009 report on cooperation in advance of the review
conference.

a.
National focal points

A basic arrangement that many states have established is the
appointment of a national focal point on ICC cooperation.[23]
This focal point receives cooperation requests from the court and channels them
to the relevant body within the national authorities. In some countries, the
national focal point is responsible for following developments at the ICC and for
participating in ASP sessions.[24]
In addition, the focal points help their respective national governments define
policies regarding specific developments related to the work of the court.

Human Rights Watch believes that these national focal points
should play an additional role: proactively working to build support for court
issues within and across government institutions.[25]
This would increase understanding within governments about the ICC, which in
turn will promote more effective cooperation. Efforts toward this end could
involve convening discussions and meetings on cooperation and sharing updates
with relevant ministries.

Working through a focal point may at times slow response
time to cooperation requests. For example, it could seem more efficient for ICC
staff to contact the local police in Paris to interview a Congolese citizen
residing there who may be a witness in the ICC’s investigation in the Congo.
However, Human Rights Watch believes there is a major value to working through
a central authority: it ensures that the response reflects a government
position as opposed to that of an enthusiastic individual who may soon rotate
posts.[26]

For a number of states parties, the national focal point is
someone appointed from their ministry of foreign affairs, although justice
ministries tend to be involved in the practical work of responding to
cooperation requests. For other states parties, the Hague-based embassy legal
adviser serves this function, working with contact points within ministries. In
order to ensure cooperation issues receive the attention that they require, it
may be necessary to appoint focal points with senior standing within a
government.

b.
Interagency task forces

Some states parties have also created more detailed internal
coordinating arrangements. This tends to be the pattern among states with
greater resources and previous experience cooperating with international
tribunals. One such arrangement is an inter-ministerial task force.[27]
An inter-ministerial task force—which can meet regularly or on an
as-needed basis—can foster greater consultation and can enable
information exchange among relevant ministries on cooperation. It can also
heighten the ICC’s profile within a government.

One of the more developed units is the Belgian Task Force
(BTF). The BTF provides a forum in which consideration and discussion of
cooperation with the ICC and other international tribunals occurs.[28]
The BTF includes representatives from a wide range of governmental departments,
including the ministries of foreign affairs, justice, defense, and interior,
and meets two or three times a year.[29]
While the BTF does not deal with specific cooperation requests or projects, it
provides a platform where the relevant Belgian authorities consider and discuss
cooperation with the ICC and other international tribunals and helps to keep
information about cooperation requests and projects flowing.[30]
Notably, through the BTF, each department designates a contact point. This can
facilitate response to specific cooperation requests involving these
departments as they arise. In addition, while a national focal point unit in
the Ministry of Justice helps to move specific requests through the national
machinery, a sub-group of the BTF consisting of the most relevant actors can be
pulled together to assist as needed on particular projects, such as
negotiations on a witness relocation agreement.

As such, the approach reflected by the BTF is valuable in
that it helps ensure that officials who should be involved in ICC cooperation
are “at the table.” It also raises awareness about international
justice and judicial cooperation matters.

3.
Framework agreements

There are some areas—such as transport of suspects,
witness relocation, provisional release of defendants, and enforcement of sentences—for
which agreements prior to specific requests for cooperation are especially important.[31]
These requests may require quick turnaround and may arise several times. It is
simply too onerous and inefficient to “reinvent the wheel” every
time.

“Framework agreements” between the ICC and
states parties are one important means through which these needs can be
properly addressed. Framework agreements provide a broad outline of duties and
responsibilities for states parties and provide a basis on which states can
react quickly to court requests.[32]
Notably, the agreements do not predetermine a specific positive or negative
reaction by the state party. However, if a decision is made to move ahead, a
foundation is already in place.

While some framework agreements have been concluded, the current
number is insufficient.[33]
Admittedly, assistance such as witness relocation and imprisonment of convicted
individuals involve financial commitments and long-term assistance. At the same
time, these are fundamental to the court’s ability to function. Moreover,
as the number of cases before the court increases, the demands in these areas
will likely grow.[34]
The greater the number of states parties that sign framework agreements, the
more the burdens can be properly shared and managed.

We urge all states parties to consider concluding agreements
regarding witness relocation. Of course, there are advantages to relocating a
witness to a geographically proximate and culturally similar environment.
However, states that fit those requirements may lack the necessary capacity and
expertise in this area.[35]
As discussed in the ASP Bureau report on cooperation, and pursued by the Bureau
focal point on cooperation, it would be useful to explore ways in which states
parties with relevant experience and resources can assist states parties that
are willing but lacking in capacity.[36]
Indeed, the court is in the process of establishing a special fund to
facilitate witness relocation for just these purposes.[37]
The court has also indicated its intent to explore tripartite agreements with
states willing to consider funding requests for the enforcement of the sentence
of a convicted person on the territory of another state party.[38]

Other challenges can arise in the interface between the
needs of witness relocation and enforcement of sentences, on the one hand, and
the requirements of domestic law, on the other. This is especially pronounced
in countries with a federal system, where social benefits may flow from a
particular provincial or state entity.[39]
The process of negotiating a framework agreement in such states can be a
valuable way to bring the relevant actors together to resolve challenges to
providing assistance. This also avoids such issues becoming repeated
roadblocks.

An overarching obstacle is a belief among some state
officials that there is little or no popular domestic support for assisting the
court with practical tasks that involve costs. Some states parties, as a
result, are reluctant to tie themselves down with a framework agreement.[40]
Where popular support may appear to be lacking, we see a vital role for
officials to develop strategies to change public opinion. Moreover, such
assistance should be presented and understood as an integral part of the fight
against impunity and consistent with ICC membership. Otherwise, the court will
not be able to operate.

E. Diplomatic and political
support

Given the challenges that the ICC faces, the need for
vigorous diplomatic and political support by states parties cannot be
overstated. As the ASP Bureau’s report on cooperation points out,
“[c]onsistent, strong and long-term political support of states parties
is of vital importance for the Court to be able to carry out its
functions.”[41]
Diplomatic and political support can be key to achieving particular goals, such
as arrest and surrender, and also to creating a climate that is generally
conducive to facilitating the court’s work.

Active diplomatic and political support is all the more
important given that the ICC often operates in situations of instability or
ongoing conflict. Investigation and trials of crimes committed in these
situations are particularly significant since a credible threat of prosecution
may help stem further abuses. At the same time, in these settings the
court’s work exists alongside other important objectives, such as peace
negotiations and peacekeeping operations.

Human Rights Watch recognizes that states parties manage a
range of interests vis-à-vis ICC situation countries. But silence,
ambivalence, or muted support regarding the ICC’s mandate in these
situations sends an untenable signal about the court and about justice more
generally. States parties should give clear, consistent backing to the ICC in
these circumstances and also should stress the role of justice in cementing a
durable peace and the need for an outcome that include both objectives.
Moreover, as discussed below, there are numerous other important opportunities
that we urge states parties to seize to provide the court with needed
diplomatic and political support.

1. Arrest and surrender

Without its own police unit
to execute its arrest warrants, the ICC remains wholly dependent on the
assistance of governments—sometimes regimes responsible for the very
crimes at issue—to apprehend accused persons. There has been some
cooperation on arrest: in 2008, for example, Belgian authorities arrested
Jean-Pierre Bemba on the basis of an ICC arrest warrant and transferred him to
ICC custody; until early 2009 Democratic Republic of Congo (DRC) authorities
provided important cooperation toward the arrest of individuals wanted in the
DRC situation (such cooperation ended with the integration of a former rebel commander
into the Congolese army, as discussed below). Overall, however, the court has
faced significant obstacles with respect to arrest and surrender.

To date, most ICC arrest
warrants have not been executed and several arrest warrants have been
outstanding for years. President Joseph Kabila of the DRC has claimed
that the imperative of peace prevents the arrest of Bosco Ntaganda, a former
rebel commander who is wanted by the ICC on charges of recruiting children to
be combatants.[42]Rather than arrest Ntaganda, the Congolese
government has rewarded him with the rank of general in the Congolese army.[43]In the Darfur situation, President al-Bashir
overtly flaunted the ICC’s two existing warrants of arrest for militia
leader Ali Kosheib (a pseudonym for Ali Mohammed Ali) and State Minister for
Humanitarian Affairs Ahmed Haroun. We discuss below the backlash experienced by
the court in the wake of the arrest warrant issued for President al-Bashir.

Compelling the arrest and
surrender of individuals by a recalcitrant government is one of the most
difficult tasks for the court. It highlights the broader limitations of a still
fledgling system of international justice.

Despite the difficulties,
experience from the 15 years of international criminal tribunal practice shows
that efforts by states to wield their combined political, diplomatic, and
economic clout can be decisive for arrest and surrender. At the International
Criminal Tribunal for the former Yugoslavia (ICTY), for example, Serbia’s surrender of 20 indicted persons in 2005 and two indictees each in 2007 and
2008 (including former Bosnian Serb leader Radovan Karadzic) was directly
related to diplomatic pressure around negotiations over its prospective
accession to the European Union.[44] In 2006 increasing diplomatic pressure by states,
including the United Kingdom and the United States, helped lead to the
surrender of former Liberian president Charles Taylor for trial at the Special Court for Sierra Leone.

These examples underscore the
value of principled and active use of diplomacy. To this end, states parties
should regularly raise arrest and surrender in bilateral contacts with
non-cooperative states, in interactions with influential third-party states, in
meetings at regional and international intergovernmental organizations, and at
ASP sessions. States parties should also be creative in identifying and
utilizing relevant political and economic leverage as appropriate, such as
sanctions. Such efforts may not lead to immediate action but are crucial to
stigmatization and, ultimately, surrender.

The situation in Uganda
presents a more complicated picture, where the main difficulty at present appears
to be capacity to execute arrest warrants. The Lord’s Resistance Army has
established bases in a remote corner of northeastern DRC and has renewed
attacks on civilians, including by committing massacres and forced recruitment
through abduction.[45]

These circumstances create
special challenges for states parties and the court that are likely to repeat
themselves in other situations. Where capacity is inadequate, states parties
should be willing to share in the burden of executing arrest warrants as a key
component of their cooperation obligations. States parties should consider a
variety of forms of assistance—including the strategic planning for
arrests—and could do so through intergovernmental and regional
organizations.

We recognize that this goes a
step beyond what most states currently understand to be their obligations to
the ICC and will require development and deepening of those obligations. But
where a territorial state in which ICC suspects are located is unable to carry
out arrests, it cannot simply become no one’s responsibility at all.
Instead, responsibility must be shared between states parties.

2. Integrating the court in
the United Nations system

It is essential that the ICC become firmly integrated in the
United Nations system. The UN is the principal multilateral platform for states
parties to channel diplomatic and political support for the ICC. Its
involvement in so many conflict and post-conflict situations, including those
before the ICC, also means that the UN is in many instances uniquely placed to
play a constructive or negative role in relation to the ICC’s mandate.

Despite an overall supportive relationship between the UN
and the ICC, there has and continues to be some resistance in the UN Secretariat
to the ICC. This is most pronounced, not surprisingly, where advancing the
ICC’s mandate is perceived as a potential obstacle to progress in other
UN activities, such as peacekeeping and peace negotiations. This only
underscores the need for states parties, as noted below, to convey the
importance that they attach to the ICC in interactions with high-level UN
officials.

The ASP Bureau report highlights the crucial role of the
United Nations and enumerates a number of valuable ways to properly “root”
the ICC into the UN machinery. These measures, which should be actively
implemented by states parties, are as follows. First, states parties should
ensure that the ICC is adequately taken into account in Security Council
action, including in relation to peacekeeping mandates, missions, and
sanctions. Second, the ICC should be referenced in General Assembly and other
resolutions where appropriate. Third, states parties should remind UN member
states of their duty to cooperate and should request that states fulfill their
obligations, in particular with respect to arrest and surrender. Fourth, when
considering candidacies for membership in UN organs, states parties should
consider willingness and capacity to ratify the Rome Statute and to cooperate
with the court. Fifth, regional groupings should keep the court’s needs
in mind as appropriate. Sixth, states parties should raise awareness and
support for the ICC in appropriate UN fora, including in bilateral meetings
with UN officials and in debates in the various UN committees.[46]

In addition, Human Rights Watch urges UN officials and staff
to give the ICC essential political support in both private and public
contexts, such as in discussions with relevant states and armed groups involved
in peace negotiations and in meetings with regional organizations. Two main
messages are particularly important: there must be justice where serious crimes
in violation of international law have been committed, and justice is vital to
establishing a sustainable peace. Indeed, such efforts are consistent with UN
policy, practice, and principles.[47]

ICC officials also need to do their part in keeping the UN
aware and engaged in the ICC’s work. Important practice in this regard,
as discussed below, includes the ICC president’s annual address to the
General Assembly, the prosecutor’s briefings to the Security Council on
Darfur, and the establishment of the ICC-UN liaison office. The activity that
has accompanied briefings by ICC officials at UN headquarters underscores the
benefit of regular visits by high-level court officials to foster diplomatic
and political support. The visits are, moreover, important opportunities to
engage states parties’ representatives in strategic dialogue, especially
in advance of significant events such as Security Council briefings.[48]

The filing in April 2010 by the prosecutor of the first-ever
request from the court’s judges of a finding of non-cooperation by the
government of Sudan[49] under
article 87(7) of the Rome Statute highlights another important role of the
Security Council. If the judges make a finding of non-cooperation, that finding
may be forwarded to the Security Council for action, which could include
resolutions or sanctions to bring about cooperation.

While there are numerous UN fora that states parties can
utilize to provide political and diplomatic support to the ICC, several annual
opportunities merit special note. These are the General Debate of the General
Assembly, in which the ICC was positively featured in 2007;[50]
the ICC president’s briefing to the General Assembly; and negotiations
over the ICC resolution by the General Assembly’s sixth committee.

3. Integrating the ICC into
the work of regional organizations

Diplomatic and political support to the ICC from regional
organizations is also very important. These organizations are influential, and
their explicit backing provides added leverage for the court in executing its
orders and in endorsing its mandate. This backing also brings geographic
support for the court, which may have implications for the practical assistance
provided to the ICC on the ground. As indicated in the ASP Bureau report,
states parties should promote, where possible, the “mainstreaming”
of court-related issues within such organizations.[51]

The ASP report proposes important specific measures that
states parties should undertake vis-à-vis regional organizations, which
Human Rights Watch fully endorses. These include: initiate and support joint
statements and resolutions by regional organizations promoting the court and
its general and situational activities, promote cooperation agreements between
regional organizations and the ICC, support the establishment of working groups
within regional organizations on the ICC, promote meetings within regional
organizations to raise awareness and to exchange information on cooperation,
and address the ICC at high political levels within the relevant organizations.[52]

The European Union offers a positive model regarding the
kind of cooperation that is required from regional organizations. In 2003, the
EU adopted a common position on the ICC that is intended to help guide the 27
member states in their action on the ICC both at the EU and in other fora.[53]
Consistent with the position, the EU has undertaken numerous initiatives in support
of the court. These include carrying out demarches, raising the ICC in
political dialogue and in summits with third states, and including a clause of
recognition and support to the ICC in cooperation agreements with non-EU
states. The European Parliament has also been a staunch supporter of the court
since its inception.

In addition, the EU is endeavoring to mainstream support to
the ICC in its various activities. Examples include the mandates of the EU
special representatives to Sudan and to the Great Lakes to liaise with the
court on their respective areas of competence. The EU has also issued numerous
foreign minister conclusions in which the ICC is properly featured.[54]
The EU should continue efforts to mainstream the ICC in these and other activities.
For example, discussions on complementarity during the review conference
provide an ideal opportunity for the EU to consider focusing development aid on
assisting national judiciaries in situation countries with the investigation
and prosecution of serious international crimes.[55]
The EU should also consider adopting guidelines on the ICC. Such guidelines,
which exist for other important human rights priorities and for international
humanitarian law, would bring together the political commitment of the EU’s
current common position with the practical points included in the current
action plan, allowing these documents to be updated to match the court’s
needs now that it has become fully operational. Adopting guidelines on the ICC
would raise the visibility of EU policies on the ICC, and send a strong signal
of continued commitment to the ICC even as the EU undergoes institutional
reform pursuant to the Lisbon Treaty.

Similar efforts are required by other regional
organizations. Given the court’s activities in Africa, increased
political and diplomatic support is particularly needed from the African Union,
a task made more difficult by backlash against the court in the wake of its
arrest warrant for President al-Bashir. We discuss below this backlash and steps
that could be taken to address it, including within the African Union.

4. Addressing new challenges: The backlash against
the al-Bashir warrant

While backlash against the March 2009 ICC
arrest warrant for Sudanese President Omar al-Bashir began almost as soon as
the application for the warrant was announced,[56] concerted efforts by allies of al-Bashir to undermine the
ICC’s mission culminated in a July 2009 decision at the African Union
(AU) summit in Sirte, Libya. That decision—which appears to have been
engineered by a small number of North African non-states parties—called
on AU member states not to cooperate in his arrest and surrender.[57] The decision additionally requested the AU Commission to
prepare guidelines and a code of conduct for the exercise of the
prosecutor’s discretionary powers, particularly in relation to his proprio
motu authority. This was to be done at a late 2009 meeting of African ICC
states parties and non-states parties to prepare for the ICC Review Conference.[58]

The call for non-cooperation, contravening the treaty
obligations of the 30 African states parties to the ICC, and suggested
interference with the prosecutor’s independence—a hard-won
independence essential to the effective operation of a court often called on to
address the role of state officials in serious crimes—are deeply
troubling.

Following the July 2009 decision, several African
states—including Botswana, South Africa, and Uganda—were quick to
publicly oppose the decision or reiterate their commitment to the ICC.[59]
Notwithstanding the Sudanese government’s statement that al-Bashir was
“free to travel across Africa” following the Sirte summit,[60]he in fact has yet to visit an ICC state
party, in or out of Africa, since the issuance of the arrest warrant. Prior to the
Sirte summit, several statements reflecting strong support for the ICC from
African civil society were issued including in Cape Town, Kampala, and Addis
Ababa.[61] In the
wake of the Sirte decision, a statement signed by more than 160 African civil
society groups explicitly called on ICC African states parties to reaffirm
their support for the ICC.[62]

Progress in resisting the efforts of a few to strip meaning
from the AU’s rejection of impunity for serious crimes, reflected in
article 4 of its Constitutive Act, has been strongly assisted by the efforts of
many African ICC states parties. African ICC states parties, for example,
reaffirmed their commitment to the ICC and to combating impunity during a
meeting convened in preparation for the Sirte summit,[63]
and have continued to play a strong role in seeing that African Union
discussions on the ICC are grounded in principle and include support for the
ICC, such as during the November 2009 AU meeting on the ICC.[64]
ICC judges and other officials have also worked to spread accurate information
about the court including through visits to key African capitals.[65]
And, as indicated above, African civil society organizations are working
consistently to ensure that their voices in support of international justice
are heard. Perhaps partly as a consequence of these combined efforts, the
landscape has seen measured improvement in the most recent period. Notably, a
decision on the ICC taken at the AU summit in February 2010 made no reference
to the Sirte decision, while also calling on African states parties to
participate actively in the review conference.[66]

President al-Bashir’s allies, however, are unlikely to
be easily dissuaded from efforts to undercut the ICC. Nor do challenges to the
court’s legitimacy emanate exclusively from certain African states that
support impunity for governmental leaders. For example, the absence of stronger
voices in support of the ICC by states parties and other international partners
at important moments, such as around Sudan’s elections in April 2010, has
been disappointing.[67] ICC
states parties, court officials, civil society, and other international
partners should pursue sustained efforts to advance the court’s
legitimacy and secure a broad base of support for the ICC’s mission. As
discussed below, in addition to states parties employing a full range of
diplomatic and political tools, efforts are needed to bolster the court’s
public information strategy and to build new links with the African Union.

a. Encouraging a strong ICC public information strategy

The unprincipled critics of the ICC have disseminated
misinformation that should be continually exposed and discredited. For example,
while a central charge has been that the ICC is unfairly targeting African
officials, in fact, three out of the five African situations currently before
the ICC were voluntarily referred by African governments. The fourth situation,
Darfur, was referred to the ICC by the UN Security Council in a resolution
supported by Benin and Tanzania, both then elected members of the Security
Council. Only the Kenya situation was initiated by the prosecutor acting on his
own motion and subject to the approval of an ICC chamber of three pre-trial
judges.

While states parties and civil society can assist in the
dissemination of accurate information about the ICC, the court needs its own
strong, strategic approach to public information. As discussed in our chapter
on “Impact,”[68]
progress has been made in deepening the ICC’s approach to outreach to
affected communities in recent years, including through the engaged efforts of
states parties, and outreach efforts to affected communities are essential and
should continue to be reinforced.

Emphasis on outreach, however, has not permitted the full
development of a broader public information strategy for the court tied to its
external relations requirements. Ensuring that information about the court
reaches a wider audience requires multiple approaches and tools and will
require additional resources in the court’s budget for implementation.
The registry’s Public Information and Documentation Section (PIDS) is in
the process of developing a public information strategy, and is also making
preparations to use the review conference to reach new audiences.[69]
States parties should be prepared to support the additional resources for the
court that will be necessary to carry out essential public information efforts.

b. Building new links with the African Union

Human Rights Watch welcomes the decision taken by the ASP at
its eighth session to support the establishment of an ICC liaison office with
the African Union in Addis Ababa. This office will permit court officials to
engage with AU embassies and AU organs and officials, and ensure ready access
by embassy and AU officials and staff to accurate information about the court
and its activities. Over time, sustained engagement between the court and the
AU and its members can help increase understanding of and support for the ICC,
facilitating, in turn, the court’s investigations and activities on the
continent.[70]

We look forward to the rapid establishment of the ICC
liaison office in Addis Ababa. Notwithstanding the efforts of the ASP president
and court officials to secure alternative arrangements, it appears that it will
first be necessary for the ICC to sign a memorandum of understanding with the
African Union before a headquarters agreement can be reached.[71]
Negotiations on a memorandum of understanding between the ICC and the AU have
reached an advanced stage, although little progress has been made recently. We
urge all African states parties to express to AU officials their strong support
for an ICC office in Addis Ababa and a speedy adoption of the memorandum of
understanding. Statements during the review conference offer an ideal opportunity
for African states parties to make their commitment to integration of the ICC
into the African Union publicly known. African states parties should
additionally consider pledging their political and practical support to moving
forward the memorandum of understanding and opening of the Addis Ababa office. A
pledge made by all 30 African states parties toward that end would send a
powerful signal about their strong commitment to the fight against impunity and
the success of the ICC.

IV. Complementarity

A. Introduction

Complementarity is the
bedrock of the Rome Statute system. Under this principle, a state party bears
primary responsibility for investigating and prosecuting serious international
crimes committed on its territory or by its nationals.[72]The ICC only
steps in as a court of last resort where national courts cannot or will not do
so.[73]But even when
the ICC intervenes, fair and effective investigations and trials at the
national level remain essential: the court’s reach is generally limited
to a handful of individuals considered to be most responsible for the crimes
committed. States where ICC crimes are committed, however, are often mired in
or have recently emerged from conflict or otherwise lack the capacity and
political will to meet the obligation to conduct fair trials.

To make the complementarity
regime effective in practice, much more is needed to bolster states’
capacity to address these realities and meet their obligation to close the
impunity gap. Human Rights Watch therefore welcomes the opportunity provided by
discussions at the review conference to take stock of complementarity efforts
to date and to discuss how to concretely improve domestic accountability for
Rome Statute crimes.

In particular, we appreciate
the emphasis on “positive complementarity” in the ASP
Bureau’s report. We define positive complementarity as voluntary measures
undertaken primarily by states and intergovernmental organizations and
facilitated by the ICC. These are aimed at strengthening and enabling national
capacity to conduct serious and effective national investigations and trials of
Rome Statute crimes and, where necessary, to exert political pressure toward
that end. The Bureau report recognizes that positive complementarity should not
detract from the primary obligation of the state or states that have
jurisdiction over the crimes in question to conduct credible national trials. Its
emphasis is on ways to better position states—by prioritizing the
prosecution of serious crimes in rule-of-law development assistance already
being offered—to discharge that responsibility.

To facilitate discussions on
complementarity at Kampala and in preparation for the review conference, we
offer our assessment of what more is needed to put complementarity to work in
practice. We look first at how complementarity efforts can address the issue of
domestic jurisdictions’ inability to conduct prosecutions of serious
crimes. We discuss why donor states should prioritize prosecution of serious
international crimes as a crucial component of their development programs aimed
at rule-of-law reform.

We also believe that
stocktaking on complementarity should touch on the limited but essential
“catalytic” role the court can play in national prosecutions,
particularly in country situations under analysis and investigation. In those
countries, ICC staff, especially those based in field offices, can provide
essential guidance as “insiders” to pinpoint gaps in the domestic
justice system that hinder or preclude trials of serious international crimes.
Through focusing the attention of donor states on the areas of greatest need in
situations under investigation and analysis, in the leverage that the threat of
ICC intervention can provide, and through a number of cost-neutral or low-cost
initiatives carried out directly by the court, the ICC can be a catalyst for
national prosecutions. We outline the role of the court in this area drawing on
its own practices to date as well as lessons learned from other tribunals,
notably the International Criminal Tribunal for the former Yugoslavia (ICTY).

Of course, a state’s
capacity to end impunity at the national level rests on its political will to
conduct credible trials.[74] The reality is that unwillingness may be deeply
rooted. For instance, a state may possess the tools to try cases but refuses to
do so because government officials are themselves responsible or complicit in
ICC crimes. These difficulties only heighten the importance of considering what
states can do to tackle unwillingness.

We also discuss the crucial
role states should play in addressing unwillingness by consistently
prioritizing on the international stage the need for national prosecutions. By both
privately and publicly expressing their political support for national
prosecutions and raising the political cost of inaction in multilateral fora
such as UN Security Council and General Assembly meetings, states can play a
pivotal role in eroding a state’s unwillingness to address ICC crimes.
This section addresses how undertaking projects focused on inability can play a
role in transforming willingness at the local level as well. The court has a
part to play in galvanizing political will to carry out national prosecutions,
which we also address in this section.

Overall, discussions in Kampala on positive complementarity should, we believe, contribute to increased
understanding of the need for such voluntary measures and lead to an increased
commitment among states parties and the broader international community to
share in such efforts. Review conference adoption of the draft resolution on
complementarity forwarded by the resumed eighth session of the ASP is a
necessary step towards regularizing discussions on this important topic. Indeed,
discussions on positive complementarity within the ASP are particularly
appropriate since, as a body of states committed to the fight against impunity,
the ASP is uniquely positioned to help prioritize efforts toward the
prosecution of serious international crimes, a focus too often lacking in
broader rule-of-law reforms. Promoting regular discussions on positive
complementarity within the ASP also will ensure that the court can bring its
unique experience to bear in discussions on strengthening national
accountability efforts, as we discuss below. We look forward to discussions
after Kampala on the basis of this resolution about the role of the ASP in
assisting complementarity initiatives among states parties.

1. The role of states and intergovernmental organizations

a. Mainstreaming in practice: Prosecuting serious international crimes as
an essential component of rule-of-law reform

The Bureau report on
complementarity puts a welcome spotlight on how donor states and intergovernmental
organizations such as the UN can mainstream, on a voluntary basis, the
prosecution of ICC crimes in the development assistance they are already
providing. The Bureau report identifies three main categories of assistance
that can be rendered under positive complementarity: legislative assistance,
technical assistance and capacity-building, and the construction and
sustainable operation of physical infrastructure projects.[75]

Human Rights Watch believes
that the primary focus of such efforts should be identifying projects in ICC
country situations under investigation and analysis. From a practical
standpoint, these are countries where the need to bridge the impunity gap is
already manifest.[76]Indeed, in countries scarred by
grave violations of human rights committed on a massive scale, ensuring a more
systematic focus in prosecuting serious international crimes can be vital to
the success of broader rule-of-law efforts. In these countries, an important
part of restoring confidence in the rule of law includes holding to account
individuals suspected of the atrocious crimes that “deeply shock the
conscience of humanity”[77] and which characterized the underlying conflict. The
early process of rule-of-law reform in northeastern Democratic Republic of
Congo (DRC) illustrates the limits of efforts aimed at rebuilding the
legitimacy of the justice sector in the eyes of affected communities where
serious international crimes are not prosecuted.

Five years of violent
conflict in Ituri led to the total collapse of the judicial system, which was
already in worse condition than elsewhere in the DRC. In late 2003, a
memorandum of understanding was signed by the government of the DRC, the
European Commission, and the French cooperation agency (“DRC memorandum of
understanding”) to establish an emergency program for the rapid
restoration of the Bunia judicial system in Ituri.[78] As is clear from the division of labor outlined in
the DRC memorandum of understanding, the factors addressed by the program were
those that will commonly feature in complementarity initiatives because they go
to the core of what is needed to facilitate prosecutions of serious
international crimes. They included: funding and deploying qualified judicial
staff; addressing the security of court staff, witnesses and victims; and
rehabilitation of the judicial system’s physical infrastructure.

In the program’s first
six months, between January and June 2004, Human Right Watch documented notable
successes. Many people commented on the impact that the arrival of the
investigative judges—sent from Kinshasa— had on the attitude of
members of armed groups.[79]The
prosecution of militia leaders made an important contribution to the slow but
gradual normalization of security conditions in Ituri.

But this progress was
limited. The program lacked a focus on serious international crimes; its
implementation was connected more with the necessity to quell minor crime that
was hampering peacekeeping efforts in Ituri than the fight against impunity for
ICC offenses. Moreover, the Congolese government did not give the prosecutor in
Bunia any specific mandate to pursue war crimes and crimes against humanity,
thus ruling out bringing perpetrators of these crimes to account.[80]Nor did the
Congolese government take steps to speed up the passage of legislation to
implement the Rome Statute, which would also have provided the prosecutor in
Ituri with the clear legal basis to pursue serious international crimes.[81]

As a result, while 15 major
leaders of armed groups were under arrest by June 2004, none were prosecuted
for the serious international crimes that many believed they had committed,
ordered, or approved.[82]Many armed
militia leaders were instead prosecuted for petty offenses despite evidence of
their involvement in mass atrocities. For example, in June 2004, the court
sentenced Prince Mugabo Taganda to 48 months’ imprisonment for
“ordinary theft” of a stereo system, although he was, by his own
admission, a commander of the operations of the Union of Congolese Patriots
(UPC), a Hema militia operating in Bunia for all or part of the period from
August 2002 to June 2003. Under his command in Bunia, the UPC carried out
systematic attacks against the Lendu and other groups involving torture,
arbitrary arrests, summary executions, and enforced disappearances. Sentencing
Prince Mugabo for the theft of a stereo system hardly addressed the need and
expectation for justice of a population traumatized by years of bloody
conflict. This had a negative impact on perceptions of the court’s—and
the program’s—credibility and legitimacy in the eyes of the local
population.

When militia leaders were
charged with more serious ordinary crimes, such as murder, their prosecution
tended to expose fundamental weaknesses in the program’s efforts to
strengthen the local judicial system. The precarious security situation in
Bunia and lack of a witness protection program meant that witnesses were
vulnerable to acts of intimidation by armed groups. Since judges had no means
of protecting witnesses, it was difficult to secure their testimony in court.
This compromised the judges’ ability to try cases effectively.[83]

But simply devoting more
resources to the judicial system to try more serious ordinary crimes would not
have effectively addressed the widespread climate of impunity in Ituri
following years of conflict. This is because trying grave international crimes
as serious ordinary crimes does not adequately capture the conduct and level of
responsibility of those involved in their commission. Large-scale human rights
violations are generally characterized by a division of labor between planners
and implementors, as well as a structure designed to make connections between
these two levels difficult to pinpoint.[84]While
difficult, prosecuting mid-level and senior officials is essential to
undercutting the culture of impunity. These prosecutions expose the criminal
structure that led to widespread violations. Failure to do so creates impunity
for those most responsible at the top. Following the conflict in Croatia, for
instance, prosecutors tried war crimes cases as “classic murders”
with little or no attention to the state of armed conflict in which they
occurred, adopting a piecemeal approach that often led prosecutors to ignore or
not sufficiently follow up on evidence relating to the role of the perpetrator’s
direct superiors.[85]

Trying these cases
effectively also requires special expertise. For instance, judges, prosecutors
and defense counsel must possess substantive knowledge of Rome Statute crimes,
the different modes of liability, and relevant defenses to ensure that the
cases adequately address the underlying criminal conduct and are tried fairly.
Expertise in building cases based on documentary evidence (including the
capacity to analyze political and military structures) and witness testimony is
essential to successfully try higher level perpetrators.[86]The judicial system should also
have the capacity to handle the enormous quantity of evidence typical in war
crimes cases.[87]Adequate
witness protection and support measures must be put in place to safeguard the
physical and mental well-being of witnesses. As the Bureau report rightly
recommends, states have a large role to play here in engaging technical and
capacity-building initiatives in these specialized areas. These are an
important component of their positive complementarity efforts.

Additionally, where
insufficient capacity is coupled with serious concerns regarding judicial
authorities’ independence, donors should consider engaging in more
targeted and robust positive complementarity initiatives. Political interference
undermines efforts to restore confidence in the judicial sector. Positive
efforts could include funding the temporary inclusion of international judges,
prosecutors, and defense counsel to work alongside national counterparts,
helping them develop the necessary expertise while shielding national staff
from actual or perceived political interference.[88] Human Rights Watch has recommended the establishment
of “mixed” or specialized chambers with these features in both the
DRC and Kenya. [89]

The need for long-term
development assistance aimed at ending impunity for war crimes, crimes against
humanity, and genocide is acute since these crimes are generally committed on a
mass scale and their commission stems from a complete breakdown of the rule of
law. This reality underscores why states and intergovernmental organizations
should maintain the prosecution of ICC crimes as a common thread in justice
sector reform projects. As discussed above, addressing the most serious
international crimes is critical to prevent the emergence of a vast impunity
gap in relation to senior officials, as well as to promote the legitimacy of
justice sector reform efforts in the eyes of the local population. Holding
alleged perpetrators to account for the worst crimes can aid in promoting
security and stability and contribute to building a more stable foundation for
rule-of-law reform efforts overall. We address below the need for donor states
and organizations to consistently focus on these crimes in long-term
development assistance to avoid missed opportunities. To do otherwise can risk
squandering valuable opportunities—and donor funds—to effectively
tackle deeply rooted impunity for these crimes.

The experience of justice
sector reform in northeastern DRC provides a useful illustration of missed
opportunity. Following a multi-year justice audit to compile a comprehensive
understanding of the Congolese judicial system, the EU established a €15
million Program for the Restoration of Justice in Eastern Congo (REJUSCO) in
2004. Despite the REJUSCO’s exclusive focus on rule-of-law reform, in its
early incarnation it lacked a focus on strengthening local capacity to
prosecute serious international crimes. Indeed, REJUSCO staff interviewed by
Human Rights Watch in 2007 did not believe that promoting accountability for
serious international crimes should be one of the program’s priorities.
Instead, they said that to rebuild trust in the justice sector it was more
important to begin by addressing petty crime.[90] At its core, this approach ignores the lessons that
might have been learned from past experience about the importance of a focus on
serious international crimes. This is an essential part of rule-of-law reform
where mass atrocities have been committed.

Fortunately, REJUSCO’s
mandate has since evolved to include an explicit focus on the prosecution and
trial of serious international crimes as part of its broader judicial sector
reform efforts.[91] REJUSCO has made significant progress in providing
support to the efforts of local authorities to prosecute these crimes,
particularly in relation to sexual violence.[92]In addition
to the renovation of court and prison buildings, REJUSCO now includes a
specialized sexual violence cell and helps to fund the transport of judicial
staff and victims for investigations and court sessions. It also arranges for
mobile courts (chambers foraines) in small cities and rural areas.[93] Given the widespread commission of sexual violence
against primarily women and girls in eastern Congo, this focus is both
necessary and welcome. At the same time, the positive results stemming from
REJUSCO’s more recent efforts to tackle impunity only emphasize how much
more progress may have been achieved had the prosecution of serious
international crimes been prioritized sooner in the program’s mandate.

The UN Peacebuilding Commission’s involvement in the
Central African Republic (CAR) provides yet another example of a missed
opportunity. In 2005, the CAR government referred the crimes stemming from the
2002-2003 rebellion to the ICC because of a stated inability of the national
courts to try serious international crimes.[94] In May
2007, the ICC opened an investigation into crimes committed in the CAR,
focusing specifically on atrocities committed during the 2002-2003 rebellion.[95]

In July 2008, the Peacebuilding Commission placed CAR on its
agenda.[96] The
Commission, which was established in 2005 to help countries emerging from
conflict avoid falling back into war and disorder, allocated US$10 million from
its Peacebuilding Fund to the UN team in Bangui for security sector reform,
good governance and rule-of-law promotion, and revitalization of conflict-affected
areas.[97] These
priorities were determined by the government of CAR “in close
cooperation” with the UN country team, with the heaviest emphasis placed
on security sector reform and good governance/rule of law.[98]

In a December 2008 review of specific program needs within
the priority areas and the funds available to fulfill those needs, the
Peacebuilding Commission identified over $21 million in multilateral and
bilateral aid available specifically for strengthening the rule of law (in addition
to that portion of the Peacebuilding Fund money to be allocated to rule-of-law
projects).[99]Yet nothing in that review identified a
specific need for prosecutions of those responsible for serious international
crimes.[100] Similarly,
while the Commission’s strategic plans for peacebuilding in CAR
recognized that “the question of impunity needs to be treated
effectively,” accountability for high-level perpetrators of war crimes
and crimes against humanity was never specifically identified as an important
strategic element of rule-of-law efforts.[101] The
most recent review of the Commission’s strategic framework contains no
mention of efforts to combat impunity for serious international crimes.[102]

Concerns about the CAR’s inability to prosecute
serious international crimes persist. Indeed, victims participating in
proceedings before the ICC have recently stressed that the country’s
judicial system lacks judges, judicial assistants, work facilities, and even
prisons, underscoring its inability to handle complex prosecutions involving
serious international crimes. They have also raised concerns about the
impartiality of national courts and their ability to properly administer
justice.[103] Because
the CAR courts are not in a position to effectively prosecute serious international
crimes, focusing Peacebuilding Commission coordination efforts and funds on
building domestic capacity for investigating and prosecuting such crimes could
go a long way towards this goal while advancing the broader aim of
strengthening rule of law generally.[104]

More broadly, mainstreaming
the prosecution of ICC crimes on a consistent basis can improve how donor
governments and intergovernmental organizations that are active in country
situations characterized by mass ICC crimes work together. Promoting better
coordination can help reduce the risk that efforts to combat impunity will be
inadvertently sabotaged by funding cycles or stunted by duplicative mandates.
This can, in essence, help “stretch” donor commitment – and
funds – much further. As they pursue complementarity initiatives, donor
states and organizations should consider making that assistance conditional on
meeting certain benchmarks, such as the establishment of effective witness
protection programs or the deployment of prosecutors with special training in
pursuing serious international crimes to relevant national courts with the
jurisdiction to try such crimes. This would help promote a shared focus among
donor governments, recipient governments, and the staff of relevant
international and domestic organizations.

c. Maximizing the “spillover” between the prosecution of ICC
crimes and broader rule-of-law efforts

Of course, while measures
aimed at prosecuting serious international crimes should be incorporated into
broader rule-of-law efforts, there is no single formula for doing so. Overall,
initiatives aimed at strengthening a state’s capacity to prosecute Rome
Statute crimes should be viewed as a complement to rather than as a competitor
of broader rule-of-law efforts. Where possible, soliciting the input of key decision
makers such as criminal law practitioners will be essential to direct this
assistance to best effect. In the context of efforts to rebuild the judicial
system in northeastern Congo, for instance, Human Rights Watch has flagged for
donors the importance of taking into account concerns expressed by judicial
experts and practitioners in implementing criminal rule-of-law reform projects.[105]Similarly, in
the former Yugoslavia, one lesson learned is how important it is to involve key
domestic decision makers in identifying capacity needs and tailoring
initiatives aimed at addressing them based on local laws and culture.[106]

Indeed, in many instances,
capacity-building efforts for ICC crimes can generate a beneficial
“spillover” in relation to broader judicial capacity-building. For
instance, assisting a state in strengthening its witness protection capacity
for ICC crimes can facilitate the protection of witnesses in other sensitive or
high-profile criminal cases. Similarly, investigative techniques used to
uncover the criminal structure that sanctioned widespread or systematic crimes
against humanity can be applied to complex organized crime cases, and vice
versa. Further, the successful prosecution of serious international crimes is closely
linked to security sector reform efforts; the latter should include a focus on
adequately training police officers who can conduct complex investigations and
who themselves are not complicit in ICC crimes. Situating capacity-building
initiatives for ICC crimes in the context of broader judicial reform efforts
(such as by identifying areas where there is an overlap) can help maximize this
overflow and effectively extend the reach and long-term impact of donor funds.

2. The role of the court

a. The ICC as a catalyst for positive complementarity efforts

The ICC is not a development
agency. At the same time, as states contemplate how to best direct development
assistance to states to effectively prosecute ICC crimes, the court’s
potential role in devising strategies is hard to ignore, particularly in
situations under investigation and analysis, which should be the primary focus
of complementarity efforts. The court’s clear knowledge of what is needed
to try crimes in its purview coupled with its understanding of the capacity
limitations in countries where it is active means it is well placed to help
donor states efficiently identify existing gaps and target their assistance to
maximum impact. In this way, the court can play an essential
“catalytic” role when it comes to strengthening national
prosecutions.[107]

Indeed, there are a number of
efforts in which court officials are already engaged to boost positive
complementarity initiatives in states where the ICC is active. For example,
with victim and witness relocation, there is often a disconnect between states
with programs and funds but no willingness to accept protected witnesses
(because of potential political fallout at home) and states in the region that
are willing to accept witnesses but lack capacity and means. While states
parties should be willing regardless of political price to accept relocated
individuals, relocation to another country within the individual’s region
may often be preferable. The registry is developing a voluntary special fund to
funnel contributions towards strengthening the capacity of states willing to
accept witnesses.[108]While the
primary recipients of these efforts would be ICC witnesses, it is not difficult
to imagine how strengthening witness protection initiatives domestically or
regionally would benefit national prosecutions of ICC crimes as well.

The registry is also involved
in efforts to promote the adoption of implementing legislation among ICC states
parties. Pushing states to adopt implementing legislation benefits not only the
ICC, but in some states can provide the legal basis necessary to prosecute war
crimes, crimes against humanity and genocide. In addition to compiling a
database of states that have enacted implementing legislation, the registry is
already working to match states that need technical assistance to successfully
adopt implementing legislation with organizations that can provide this
assistance, such as the Commonwealth Secretariat or the International Committee
of the Red Cross.[109]

One point worth emphasizing
is the crucial role of ICC field staff in brokering positive complementarity
efforts. The field offices directly carry out and support the full range of
court activities, including investigations of the prosecutor and defense counsel,
victim participation, outreach, witness protection, and projects of the Trust
Fund for Victims. Field staff are therefore intimately familiar with the needs
of the court and the capacity of national authorities to deliver. By extension,
field staff can readily identify obstacles to the successful prosecution of ICC
crimes and engage actors working on rule-of-law reform issues and the national
government to address how these obstacles can be surmounted. Facilitating
positive complementarity efforts is a clear way in which the court’s
impact on affected communities and its legacy in situation countries can be
maximized.[110]

b. More active initiatives
to maximize the ICC’s catalytic role in positive complementarity efforts

There are also a number of
cost-neutral or low-cost initiatives the ICC can implement directly in
situations under investigation and analysis to catalyze national prosecutions
of Rome Statute crimes. For example, the EU-funded Visiting Professionals
Program already provides national judicial professionals with the opportunity
to learn from ICC experts and bring skills and knowledge back to their national
systems. The registry has identified a number of other initiatives that it has
undertaken or proposes to execute to bolster its complementarily efforts, some
of which are discussed above.[111]

The ICC Office of the Prosecutor
(OTP) has also identified positive complementarity as one of the four
fundamental principles on which its prosecutorial strategy is based.[112]OTP staff
have expressed willingness to share expertise and provide training on issues
relating to the prosecution of mass crimes such as modes of liability, elements
of crimes, investigative techniques, and defenses.[113]The OTP has
also established a Law Enforcement Network (LEN) aimed at bringing together law
enforcement officials, including those from ICC situation countries, together
with INTERPOL to define concrete investigations and projects that can be
undertaken to support efforts to fight ICC crimes.[114]

The OTP has similarly
indicated its willingness to share information gathered during its own
investigations that it does not intend to use.[115]The extent of
information that is shared depends on a national system’s capacity to
protect witnesses or other vulnerable sources and its ability to provide fair
trials, among other factors. Where such concerns exist, the ICC may be limited
to sharing non-confidential material or broad pattern analysis of crimes, which
can nonetheless be essential to helping national prosecutors tackle impunity at
home.

As a state’s capacity
to try serious international crimes develops, the ICC should consider expanding
the information it shares and formalizing how this is done.[116]For instance, the ICTY has a
“transition team” in its OTP tasked with transferring confidential and
non-confidential information (the former provided there is court authorization)
collected during its investigations to national prosecutors in the former
Yugoslavia.[117]This team
also handles requests for assistance from national prosecutors in the region in
relation to cases initiated locally but which overlap with cases adjudicated by
the ICTY.[118]The process is more than simply
passing along documents. In some circumstances, national prosecutors travel to
The Hague—using funds from their governments or other external sources—to
sit with OTP staff including investigators to go through the file, and discuss
the theory of the case and the credibility of the evidence, among other things.[119]In this way, OTP staff transfer
not only information but also valuable knowledge about how to prosecute cases
effectively.

Another initiative states
could consider is the funding of “liaison” prosecutors—essentially
prosecutors from the situation countries—within the OTP. The ICTY prosecutor’s
office participates in a program funded by the European Commission by which
three prosecutors from the region are based in the OTP in The Hague. These
prosecutors work on their own cases, and do not have access to confidential
information. However, their integration into the OTP provides them with an
opportunity to learn about methodologies of searching and reviewing large
volumes of material as applied by OTP criminal analysts. They then become the
contact points for national officials working on war crimes investigations and
cases.[120]They also
provide valuable input to OTP staff when questions arise as they try their own
cases in The Hague.[121] Similar initiatives aimed at fostering strong and
productive working relationships with national prosecutors in country
situations where the ICC is engaged can help extend its capacity-building
reach.

Overall, the court’s
current and potential role in advancing positive complementarity efforts
highlights why the input of ICC staff on activities aimed at strengthening
national prosecutions should be regularly solicited. The modest cost of
pursuing these initiatives—which can also include the sharing of
expertise between registry staff and domestic authorities in areas such as
witness protection and prison management—should be viewed against their
significant potential to yield dividends in building national capacity to
address ICC crimes. We therefore appreciate that the draft resolution on
complementarity invites the court to report on its activities in that regard at
the tenth session of the ASP.

C. Reversing unwillingness: Raising the political cost
of failing to prosecute ICC crimes

1. The role of states

Overcoming a state’s
unwillingness to prosecute ICC crimes is more difficult than addressing a
state’s inability to do so.[122]At the same
time, the entire positive complementarity exercise hinges on a state’s
political will; ultimately, even the most robust efforts aimed at improving the
capacity of states to prosecute serious international crimes can be stymied by
a state’s unwillingness to implement them. The Bureau report recognizes
that assistance and cooperation alone will not solve all issues relating to
impunity and flags unwillingness as a “special challenge,” without
elaborating on what can be done to address it.[123]

There are numerous reasons for
the unwillingness of states to prosecute serious international crimes. These
complexities notwithstanding, Human Rights Watch believes that a common
approach can be employed to deal with unwillingness: firm and consistent
expressions of diplomatic support for national prosecutions by members of the
international community. States—even those which are not ICC states
parties—should privately and publicly express their political support for
national prosecutions, both bilaterally with the states concerned and also in
key political fora like the EU, the African Union, and in the UN Security
Council and General Assembly.[124]Through
strong expressions of political support, states can play a pivotal role in
eroding a state’s unwillingness to tackle ICC crimes by raising the
political cost of failure to act.[125]

Beyond expressions of
political support for national prosecutions at the international level, donor
states are well positioned to press national authorities to satisfy specific
benchmarks to facilitate domestic trials. One key means is urging states to
pass ICC implementing legislation which, in addition to facilitating
cooperation with the court, can in some countries be essential to incorporate ICC
crimes into national law. Indeed, had the international community consistently
prioritized the prosecution of serious international crimes in the course of
justice sector reform in Congo, this could have been an effective pressure
point to urge the Congolese authorities to enact the pending ICC implementing
legislation. The current version of the legislation is set to be debated by the
Congolese Assembly in September 2010, more than seven years after its original
introduction.[126]

As discussed above, donors
can also consider setting benchmarks and making continued assistance
conditional on meeting these targets. Such an approach, if tailored
appropriately, could effectively press national authorities to do more to
address impunity, such as assigning energetic and motivated national staff to
contribute to judicial sector reform efforts, or giving prosecutors a specific
mandate to pursue war crimes and crimes against humanity.

Donor states and intergovernmental
organizations can also address lack of governmental political will by
supporting, where possible, local civil society efforts to press for national
prosecutions.[127]This could include buttressing
efforts of nongovernmental organizations aimed at galvanizing grassroots
support for accountability for the worst crimes. It could also involve
supporting or organizing programs to train local journalists on how to identify
and effectively report on accountability issues relating to serious
international crimes. In addition to challenging a government’s
unwillingness to conduct national prosecutions, cultivating a climate that
supports justice for the worst crimes can help improve a state’s
cooperation with the ICC, including for the arrest of suspects.

Finally, unwillingness and
inability should be understood as closely related. Claims of inability can mask
serious problems of political will, while addressing inability can help to chip
away at unwillingness. For example, training of judicial professionals can
stimulate interest in the prosecution of serious international crimes, and
generate political will at a local level. Over time, and with the influence of
university law faculties, law societies, and the judiciary, strong support by
international donors can have an impact on national policies and priorities.
This underscores the importance of addressing both unwillingness and inability
in complementarity efforts.

2. The role of the ICC

While more limited than that
of states, the court can nonetheless play an essential role when it comes to
challenging a state’s unwillingness to carry out national prosecutions,
particularly in situations under analysis. In these situations, the ICC can
leverage the threat of its intervention to push national authorities to
prosecute at the national level. By making its analyses known on a more
consistent and transparent basis, the Office of the Prosecutor, in particular,
could help to catalyze political will toward prosecution in situations under
analysis.

For example, the Office of
the Prosecutor has effectively used the missions of its senior officials and
staff, as well as visits of authorities from situation countries and
correspondence with these authorities, to highlight analyses publicly. In so
doing, it generates pressure on national jurisdictions to act. But the period
of preliminary examination can be a lengthy process, which may require
continued pressure on national authorities to carry out their own
accountability efforts. Making available substantive interim reports containing
non-confidential information about the status of the OTP’s
examination— similar to what the OTP did following the closure of its
examinations in Iraq and Venezuela—would help maintain this pressure.
Such information can provide a useful “hook” for civil society and
other partners, including states, to press the national authorities to do more
in key areas and could usefully point national authorities toward the actions
required to comply with their international obligations to prosecute serious
international crimes.

The regular provision of
information about the status of the OTP’s analyses, together with clearer
public material about the preliminary examination phase, would also help to
better calibrate the court’s possible intervention with public
expectations of an ICC intervention that may never materialize. We understand
the OTP is preparing a policy paper on positive complementarity, and recommend
that it give careful consideration to the role of the preliminary examination
phase, including striking this balance for a more strategic approach in its
situations under analysis to catalyze national prosecutions.

In both situations under
analysis and investigation, the ICC can use its influence to address potential
manifestations of a state’s lack of political will. For example, in
bilateral contacts, senior ICC officials such as the registrar, the president
of the court, and the prosecutor can regularly and publicly stress to the
governments of states parties the importance of adopting implementing
legislation. Where possible these calls could be made public in ICC press
releases about high-level meetings in order to keep or put the item on the
domestic agenda and offer a strong basis for action by civil society to
maintain the pressure on national authorities to pass such legislation.

Beyond implementing
legislation, the ICC’s involvement in situations under analysis and
investigation means that it is well positioned to highlight key opportunities
for other states to encourage national authorities to adopt specific measures
to facilitate domestic prosecutions. This could include legislation on witness
protection programs, reforms necessary to ensure fair trial and human rights
standards are met (such as the abolition of the death penalty), and
prioritizing the assignment of judges and other judicial professionals to
post-conflict areas.

More broadly, the ICC’s
outreach strategy can have an impact on the appetite for justice at the
national level. Through the effective dissemination of information about its
work, the ICC can help raise expectations about realizing justice at the
national level. By stimulating demand for national prosecutions of
international crimes, an effective outreach strategy can help wear down
political unwillingness at the national level to hold to account perpetrators
of the worst crimes.[128]

V. Impact of the Rome
Statute System on Victims and Affected Communities

A. Introduction

Less than seven years have passed since the ICC swore in the
first court officials and opened its doors. Though much has been accomplished
since then, at this point, before even the first judgment has been rendered, it
is still too early to assess fully how the court has impacted victims and
affected communities.

Yet there is some indication, even at this preliminary
stage, that the court is leaving a positive mark on affected communities. In
some cases, this is quantifiable: the Trust Fund for Victims, for example, has
31 active projects aimed at rehabilitation and rebuilding communities in
northern Uganda and the eastern Democratic Republic of the Congo, reaching an
estimated 42,300 victims directly. As of the end of December 2009, nearly 600
victim participants have been recognized, marking real progress in implementing
the ICC’s unique provisions granting victims the right to partake
proactively in its proceedings.

Even beyond the boundaries of its situation countries, the
court’s impact can be seen. This is as the court’s founders had
hoped. The preamble of the Rome Statute indicates a desire to end impunity for
the perpetrators of grave crimes and thus contribute to their prevention. In
the short time that the court has been in existence, it has helped shift
expectations of victims around the world about justice. Survivors of crimes
once resigned to accepting amnesties are now asking why they too should not see
accountability for crimes committed against them. The threat of ICC
investigations can and has spurred national prosecutions in places otherwise
unwilling to confront their past. The court’s case against Thomas Lubanga
on charges of child soldier recruitment has helped increase awareness in the DRC
and elsewhere that use of child soldiers is a war crime, which may contribute
to deterring use of child soldiers in the future.

Ultimately, in affected communities and beyond, the
court’s success is inescapably linked to its impact. Stocktaking at the
review conference offers an exceptional opportunity to assess the preliminary impact
of the ICC and the broader fight against impunity on victims and affected
communities, and to identify steps that can be taken by the court and its
states parties to maximize positive impact.

After first outlining briefly below how discussions in
Kampala could contribute to maximizing this goal, we provide some background observations
on the importance of outreach (including around the review conference itself),
field engagement, and prosecutorial strategy. We have previously assessed the
court’s performance in each of these areas in detail,[129]
and highlight here only key points most relevant to assessing the impact of the
court. We then turn to an assessment of the court’s preliminary
contribution to deterrence of serious international crimes and as a catalyst
for national prosecutions, two areas which hold out the possibility of
achieving impact on victims and affected communities beyond the immediate cases
within the court’s docket.

While we do not address them here, victim participation (and
the assistance and protection necessary to facilitate that participation) and
reparations are unique aspects of the ICC system addressed directly to the
rights of victims in justice processes. They also have a clear role to play in
maximizing the ICC’s positive impact among victims and affected
communities. We welcome the court’s recent development of a victim
strategy setting out broad principles and key policy objectives touching on
each of these areas.[130] We
look forward to discussion in Kampala on how to build on the important progress
made by the court in these areas.

B. Assessing impact at Kampala

The identification of impact on victims and affected
communities as a stocktaking topic for the review conference is welcome
recognition of the central place the rights and interests of victims deserve in
the Rome Statute system. Indeed, plans for stocktaking have identified as an
overarching goal the “engage[ment] of victims and affected communities in
the [r]eview [c]onference and to recall the importance of the Rome Statute
system and the Court for victims and affected communities. ”[131]
Within this overarching goal, four areas have been identified to frame
discussions: the roles in creating impact of (1) outreach; (2) victim’s
participation; (3) reparations, and (4) the Trust Fund for Victims.[132]

Substantive discussion in Kampala should lead to recognition
of the importance of each of these areas to achieving impact and a commitment
by states parties to supporting the court and the Trust Fund for Victims to
take additional steps toward strengthening their impact. In addition, as
discussed below, we recommend consideration of how the ICC’s presence in
situation countries (and the inclusion of perspectives from the field in its
practice and policy), as well as the prosecutor’s selection of cases and
charges, can contribute to the resonance of the ICC’s work with victims
and affected communities.

While evaluation of the court’s progress is necessary
and appropriate, states parties should bear in mind that the ICC remains at an
early phase in its development, yet to complete a cycle of judicial
proceedings. Discussions should reflect that maximizing and extending the
ICC’s impact beyond its own investigations and prosecutions is not
entirely within the hands of court officials. Responsibility also rests with
states parties and other allies of the ICC to ensure the support necessary for
building a credible and robust institution and to extend the reach of
international justice by strengthening national capacity to prosecute serious
crimes.

As with discussions on all of the stocktaking topics,
assessment of impact should not be confined to Kampala. Regular discussion of
cooperation and complementarity through ASP mechanisms as proposed in
pre-review conference discussions on these stocktaking topics would provide
fora for continuing engagement in these areas.[133]
When it comes to the court’s own activities—whether in outreach,
victim participation, reparations and other assistance delivered by the Trust
Fund for Victims, prosecutorial strategy, and field
engagement—consideration should be given to putting in place a mechanism
that would regularly assess whether the ICC’s policies are making its
work as accessible and meaningful to affected communities as possible. This
assessment could form part of the court’s existing strategic planning, a
process recently enhanced by the recruitment of a strategic planning
coordinator. In developing an assessment mechanism, lessons could be drawn from
the annual performance assessments already carried out by the court’s Outreach
Unit,[134] and the
performance indicators that are to be developed in the context of implementing the
court-wide strategy on victims.[135]

C. Outreach and field engagement

Trying suspected perpetrators of serious violations of
international law fairly and effectively is the primary mission of
international criminal justice mechanisms. To make an impact, however, the work
of international courts must be understood in the communities most affected by
the crimes in their jurisdiction. In addition, for victims to access the rights
of participation and reparations provided under the Rome Statute, they must
first be aware of these provisions. For these reasons, there has been
increasing recognition by ICC states parties and court officials that outreach,
rather than being auxiliary, is a key component of international criminal
justice.

Recognition of the importance of outreach came gradually and
painfully over time. The International Criminal Tribunal for the former
Yugoslavia (ICTY) suffered significant damage from lack of community
understanding. An outreach program was initiated in the fall of 1999, five
years after investigations had begun, and only after representatives of the
ICTY realized how poorly the tribunal was perceived in the former Yugoslavia and how that negative perception impacted its work. As then ICTY President
Gabrielle Kirk McDonald reported to the Security Council and General Assembly
in 1999, the ICTY’s work was “frequently politicised and used for
propaganda purposes by its opponents, who portray[ed] the Tribunal as
persecuting one or other ethnic groups and mistreating people detained under
its authority.”[136]The report noted that the Tribunal was
viewed as remote and disconnected from the population and that there was little
information available about the court.[137]For a significant time, none of the tribunal’s
documents were even accessible in Serbo-Croatian. Authorities who did not wish
to recognize or cooperate with the court exploited the lack of information
available about the court, damaging efforts to foster reconciliation and
impeding the prosecutor’s work. The regional outreach offices that were
finally established in 2000 and 2001 have fought an uphill battle to correct
public opinion that had been adversely affected by a biased media.

TheInternational Criminal Tribunal for Rwanda (ICTR)
began a limited outreach program in 1998, following the conclusion of the first
trial and three years after investigations had begun in Rwanda. By that time, public perception of the tribunal in Rwanda had been negatively
influenced by government criticism.[138]
The lack of outreach also resulted in the tribunal’s work remaining
invisible to most of the population, therefore limiting the ICTR’s impact
in Rwanda. The Special Court for Sierra Leone implemented a robust outreach
program early to avoid the pitfalls experienced by the ad hoc tribunals.

The ICC’s view of outreach has evolved significantly
since the court began operations. The initial lack of emphasis on outreach has
been replaced with a better understanding of outreach’s importance in
realizing the court’s mandate, and increased capacity, with the support
of states parties, in the registry’s Public Information and Documentation
Section (PIDS) and its subsidiary Outreach Unit. For example, the court has
employed more staff in both The Hague and in the field to better devise and to
implement the court’s outreach strategy in affected communities. It has also
intensified outreach efforts to make its first trials more accessible to local
populations, creatively using ICC-produced audiovisual materials to develop a
series of programs and summaries of in-court proceedings for use on radio and
in mobile screenings in affected communities.[139]

As the court itself acknowledges,[140]
there is more that can and should be done to maximize impact through outreach. We
discuss below a number of lessons learned from experiences so far and the
progress of the ICC in putting these lessons into practice.

1. Early and often

The problems faced by the ad hoc tribunals demonstrate the
importance of starting outreach early. In that regard, it is commendable that
the ICC had already initiated public information activities in Kenya even before the March 31, 2010 decision of the pre-trial chamber authorizing the
prosecutor’s investigation.[141] This
stands in contrast to the Central African Republic where an outreach unit only
became operational at the end of 2008,[142]approximately eighteen months after
investigations were begun and some six months after the first suspect in that
situation, Jean-Pierre Bemba, had been taken into custody.

While the early start in Kenya was positive, sustained
engagement with affected populations is necessary for outreach to be effective.
This involves maintaining a steady flow of relevant information to affected
communities about important aspects of the court’s work. It also means
repeating this information to ensure that it is fully understood by as many
people in target audiences as possible. The key is to avoid significant gaps in
time between outreach events, including media events, since it is during those
gaps that negative rumors and damaging perceptions can fester. Efforts may need
to be intensified to respond to significant developments in ICC
proceedings—such as arrests and key trial moments—as well as
political developments on the ground—such as peace negotiations or
further violence—in order to effectively stay engaged with local communities.
Thus, as in all of the ICC’s country situations, the early start to
outreach in Kenya will need to be sustained and reinforced over time in order
to have meaningful impact.

2. Two-way
communications

While the frequency of events is important, the impact of
the court’s outreach strategy cannot be measured by simply adding up the
number of events planned and executed. It is the extent to which these events
effectively address actual questions and concerns among affected populations
that will, in large part, determine the strategy’s success. This requires
the court to establish a genuine dialogue with people in these communities so
that it can assess the way in which its work is being perceived on an ongoing
basis and then tailor its strategy accordingly. Outreach should, therefore, be
viewed as a fluid process: perceptions among those in affected communities may
change with political and judicial developments, and the court’s outreach
strategy must be prepared to respond in kind. Similarly, the court should have
a creative and flexible strategy in place to respond to misperceptions that
arise. This requires a deep knowledge of various aspects of the context
in-country (including the historical, cultural, and political context) and
intensive efforts to translate this knowledge into targeted action.

Steps taken over the past two years by the Outreach Unit show
appreciation for the importance of facilitating this two-way dialogue. The
Outreach Unit maintains a database of questions asked during its outreach
sessions which can then be used to tailor and direct subsequent efforts. It has
also created an “Ask the Court” audiovisual program where questions
from country situations receive responses from court officials. A perception
survey was recently launched in Central African Republic to determine the
landscape of public knowledge and opinion, and the Outreach Unit has indicated
plans in 2010 to conduct a similar survey in DRC to establish a baseline in
order to evaluate the impact of future outreach activities.[143]
Perception surveys could be a very useful tool in tailoring outreach campaigns
and should ideally be undertaken as early as possible following the
intervention of the ICC in each situation country. It would be particularly
timely, for example, to carry out a perception survey in Kenya now that the
pre-trial chamber has only recently authorized investigation there.

Of key importance is the placement of outreach staff in the
field, both to sustain communications with the local population and to fully
understand the concerns of the affected communities. As noted above, the court
has made efforts to strengthen its field-based presence, including through the
recruitment of field outreach coordinators for each situation country (all but
the coordinator for Darfur are based in the field, and, for the time being, the
Uganda coordinator is also covering the Kenya situation).

The breadth of activities carried out, for example, by just
six outreach staff in all of DRC—with two trials and an ongoing investigation—strongly
suggests that more human resources are required if the court’s outreach
activities are to be significantly strengthened, and, as is needed, extended to
ICC situations under analysis.

3. Creative and
engaging communications

An effective outreach strategy should prioritize developing
and using creative means, including but not limited to posters, comic strips,
and dramatic performances, to convey important information about the court.
Using these tools can help the court overcome some of the obstacles that can
arise in communicating with affected communities, such as low rates of literacy
and language barriers. These tools are also more culturally relevant to
affected communities. As the court’s overall stance on outreach has
evolved, so too has its approach to using creative tools in its strategy: while
initially absent from its plans, the outreach staff have increasingly
recognized the utility of these tools in conveying vital information. For
example, the outreach plans for DRC in 2010 include organization of a song
contest and production and distribution of a cartoon strip about the ICC to
engage youths.[144] These
types of initiatives can be effective because they serve two important
functions of outreach: enhancing the court’s level of engagement with
those involved in the process while creating a tailor-made product that will
have a strong impact. Similar types of interactive opportunities should be
undertaken in all country situations.

4. Mass media

Engaging local mass media is also a crucial part of an
effective outreach strategy. Radio, print, and visual media play a role in
informing and potentially influencing people’s perceptions about the ICC.
Radio in particular is recognized as an important means of disseminating
information in all five countries under investigation. In some areas, such as
northern Uganda, radio is the main way affected communities obtain news and
information. The ICC’s initial absence from the radio in Uganda created a vacuum that was filled by those with different and contrary agendas: the
Lord’s Resistance Army and local leaders used the radio to air their
views on the ICC. In this way misperceptions were created that were not
countered by an alternative voice.

In Uganda, the ICC now has four radio partners in LRA
affected areas. In DRC, the ICC has partnered in the Ituri district with ten
community radio stations to broadcast summaries of court proceedings, while in
the Kivus region, where the prosecutor is currently carrying out
investigations, the Outreach Unit has also established some partnerships with
radio stations there and is exploring additional opportunities.[145]

While not the exclusive means through which outreach
activities or engaging local mass media can be carried out, the ICC’s
in-house production of audiovisual materials has tremendous potential to
enhance information efforts about court activities. The court is producing a
series of programs, including “ICC at a Glance,” “News from
the Court,” and “Ask the Court.” As such, radio stations that
would otherwise be unable to produce their own programs on the ICC are now able
to broadcast court-produced summaries of proceedings. States parties should
recognize the integral role the court’s audiovisual programs are playing
in advancing outreach and provide the necessary resources to support their
production.

5. Field offices and
input from field staff

One of the most important ways to ensure that the ICC has
adequate interaction with affected communities and effective outreach is
through the establishment of ICC offices in situation countries, ideally both
in capitals and closer to affected communities. If security circumstances make
this impossible, such offices should be located as close as possible to the
situation country.

Field offices, which support a range of court activities
including outreach, victim participation, and investigations, can dramatically
enrich the breadth and quality of ICC activities vis-à-vis affected
communities. Given the complex and varied cultures, contexts, and languages encompassed
by the multiple countries in which the ICC operates simultaneously, a
“one size fits all” approach will not be effective. At the same
time, it is simply not possible for staff in headquarters to gain deep
knowledge of every country situation. Field offices are thus key to enable
strategies that are properly tailored to the situation. Field-based staff,
especially national staff, can have a more nuanced understanding of the
environment in each country. Given the unique context of each country situation,
regional offices will not be sufficient for the court’s needs. Local
offices can also conduct activities on a far more consistent and regular
schedule than if Hague-based or even regional staff are solely responsible for
the work.

Field offices can, moreover, serve as a much needed
“face of the ICC” in situation countries. As a place that affected
communities can look to for basic information about the ICC and as a point of
contact with the court, field offices can help the ICC to become less of an
abstract, far-flung notion. Field offices also will be well placed to
contribute to efforts by the court to leave a legacy in the countries where the
court is active, such as through targeted initiatives to promote positive
complementarity.[146]

But for field offices to be most effective, they need to be
accessible to affected communities. Security and other practical difficulties
may make it impossible for the court to open offices close to affected
communities. Given these challenges, we encourage ICC staff to think creatively
about how to promote an accessible field presence as close as possible to
affected communities. ICC staff could consider opening small public outposts in
certain locations as a way to create a more public presence close to affected
communities without having to face the entire range of obstacles to creating a
full office. Separate outposts might also be valuable in locations where a
field office is already established, but security considerations do not permit
public access and drop-in visits.

Devising effective solutions for these, and other problems,
requires input from the field. In addition, because much of the court’s
activity vis-à-vis affected communities requires a tailored approach
that is culturally and politically relevant, field-based staff are better
placed to grasp the elements of the local context, which enables them to have
important ideas to make programming effective. This applies to a full range of
court activities in the field including investigations and witness protection. Limited
opportunities have been provided in the past, however, for field-based staff to
influence court policies and practices.

In the past year, the court has undertaken efforts to
enhance its field presence, and with the support of states parties, to put in
place a unit in The Hague to provide strategic guidance to field operations.[147]
This unit could take on various roles critical to promoting decentralization
and a two-way dialogue between The Hague and field offices. But to achieve this
aim, the unit in The Hague needs “registry field coordinators”
based in the ICC situation countries. These coordinators—proposed in last
year’s court budget request as an upgrading of the current field office
manager position but not approved by states parties—can help to
communicate the views of field-based staff to headquarters on a range of
policies. They also have an essential role to play in coordination, a function
presently lacking among the field-based registry staff spread across seven
units. Increased coordination would help ensure the efficient completion of
important operations key to the ICC’s impact such as conducting site
visits to affected communities. States parties are encouraged to support these
posts in the court’s 2011 budget request.

6. In situ proceedings

The Rome Statute expressly provides for the possibility of
holding proceedings in places other than the seat of the court in The Hague.[148]Holding proceedings in situation countries,
known as in situ proceedings, is a crucial way to generate progress on a range
of important objectives for the court in relation to affected communities:
media coverage of ICC activity, focus and debate on the ICC’s work, a
sense of what the proceedings involve, and greater respect for rule of law and
human rights.

The court and states parties have increasingly recognized
the importance of in situ proceedings, and the court has taken steps toward
this goal. At the 2005 session of the ASP, African states parties expressed
that “trials should, as much as possible be carried out in the localities
or region where the crime took place.”[149]The ICC’s Strategic Plan issued in
mid-2006 also rightly recognized that “[h]olding proceedings closer to
situations where the crimes occurred may increase the accessibility of proceedings
to affected populations, the efficiency of the Court’s different
activities and the extent to which the Court can fulfill its mission.”[150]The ICC’s proposed budget for 2007
also included for the first time analysis of potential costs associated with holding
hearings in situ.[151]

Although ultimately unsuccessful, efforts by the court to
hold certain proceedings in situ in the DRC in the Lubanga trial were very
welcome. The good faith effort by the chambers and registry staff to assess the
feasibility of in situ proceedings was extremely valuable for laying the
groundwork for future in situ initiatives. Lessons can be drawn from the
experience that may help facilitate future proceedings. For example, there may
need to be greater consultation with government officials in situation
countries to achieve consensus on a particular location and political support
for in situ proceedings. We also encourage the ICC judges to think proactively
about opportune moments to hold in situ hearings in the future and welcome the
prosecutor’s application to hold key moments of the trial against
Jean-Pierre Bemba for crimes committed in CAR in situ.[152]

7. Opportunities for
impact presented by the Review Conference

The review conference will provide an
opportunity for court officials and staff to project the work of the court to a
broad audience. While of a different nature to outreach efforts targeted to
those communities directly affected by the crimes under ICC investigation, broad
public information efforts on behalf of the ICC are also important to enhance
support for the ICC, to counter misperceptions spread by some critics, and to
reach victim communities with an interest in justice beyond the immediate scope
of the ICC’s current activities. Given the review conference’s venue
in Kampala, it may attract substantial press coverage in Africa, including in
media outlets that do not ordinarily cover the ICC’s activities.

Human Rights Watch welcomes the efforts
that the court is undertaking to prepare public information plans specific to
the review conference in order to make the most of these opportunities. In
connection with the visits of states parties delegates to Uganda organized by
No Peace Without Justice and Human Rights Network—Uganda (HURINET), public
information events have already been held about the review conference in
Uganda.[153] In our view, a public information strategy on the review conference,
in addition to highlighting key outcomes of the conference such as adoption of
a high-level declaration or pledges of support from states parties, could feature
of a variety of court officials and focus usefully on the ICC’s most
innovative, but less well-understood aspects, including its progress in
securing the right of victim participation and the delivery of assistance and ultimately
reparations through the Trust Fund for Victims.

D. Prosecutorial strategy

Prosecutorial strategy is not often directly associated with
impact on affected communities, yet it is key to how affected communities
ultimately view the court. Because the ICC was established to deliver justice
for serious violations of international humanitarian law where national courts
are unwilling or able to act, it is expected to adhere to procedural fairness
and equality before the law in a way that is not always possible in national
courts. Rather than provide “victor’s justice,” the ICC should
investigate and prosecute individuals on all sides who committed crimes within
its jurisdiction, even where doing so is politically inconvenient or otherwise
difficult. Rarely are crimes just committed by one party to a conflict, even if
abuses are attributed much more to one side than the other. Affected
communities are all too aware of violations committed by various parties and
failure to address serious crimes—or to explain why they are not
addressed—can undermine the court’s legitimacy. Perceptions of bias
or political interference can in this way undermine the ICC’s impact. It
is therefore essential for the credibility of the ICC that it not only act
impartially, but be seen as impartial. Impartiality is the objective, not
parity. Here, too, lessons can be drawn from the experience of the ad hoc
tribunals.

Despite facing numerous obstacles with state cooperation
from Serbia and Croatia, the ICTY managed to prosecute crimes committed by all
factions in the Balkans wars. In Bosnia, for example, it issued indictments
against 85 Bosnian Serbs, 25 Bosnian Croats, as well as more than a dozen
Bosnian Muslim government force members and Yugoslav army officers.[154]In Kosovo it pursued both Kosovo Albanians
and Serbs in the Yugoslav Army. The tribunal also issued indictments against
two Macedonians and three Montenegrins. The fact that individuals from all
sides of the conflict were prosecuted made it much easier for the ICTY to respond
effectively to those who claimed it was biased against one particular ethnic
group.

Similarly, the prosecutor for the Special Court for Sierra Leone opted to issue indictments against leaders of all parties to the conflict
including ten from two rebel groups, the Revolutionary United Front and the
Armed Forces Revolutionary Council, and three from the Civil Defense Force
(CDF), the group that fought on the side of the government. Those in the CDF were
viewed as heroes by many in Sierra Leone for protecting civilians from attacks
by soldiers and rebels. Thus the arrest of its leader, Samuel Hinga Norman,
then serving as interior minister in the Kabbah government, was a shock to many
in the community. Although the court was concerned about the effect the arrest
would have in the country, it did not cause any unrest. Rather local civil
society groups report that it enhanced local understanding of the court’s
mandate and established the court as different from “business as
usual” in notoriously corrupt Sierra Leone.

By contrast, the ICTR has only prosecuted one side, the
Hutu, for crimes in Rwanda. Though by far the vast majority of the violence was
committed as part of the genocide against Tutsi, many civilians were also
killed by the Rwandan Patriotic Front (RPF). RPF crimes included intentional
attacks on the civilian population and individual civilians, and extrajudicial executions.
The UN High Commission for Refugees estimated that the RPF killed between
25,000 and 45,000 civilians in 1994.[155] The
crimes are well-known within Rwanda, though there has been no accountability
for them either in national courts or at the ICTR. The tribunal’s failure
to address these crimes has significantly undermined its impact in Rwanda. Rather than being seen as an impartial arbiter of justice, the ICTR is viewed by
many as an example of victor’s justice. Thus its legacy, and the hope
that it would “contribute to national reconciliation and to the
restoration and maintenance of peace,” have been undermined.[156]

The Office of the Prosecutor (OTP) was represented in the
court-wide working group charged with developing the ICC’s victim
strategy, mentioned above. The OTP also recently issued a policy paper on
victim participation, designed to consolidate its approach to the range of
issues that may arise as the right of participation is implemented in practice.
The policy paper is prefaced by a strong acknowledgment that victim
participation is a statutory right.[157]While support for effective implementation
of the court’s unique provisions on victim participation is welcome, prosecutorial
strategy is falling short in some ways that may undermine its impact in
affected communities.

1. Sequencing

In his 2006 paper on case selection, the prosecutor
indicated he would take a sequential approach to his investigations: after
completion of field investigations of a particular group, the office would
examine whether other groups warrant investigation.[158]
As a practical matter, this means warrants for one group may be announced
months or years in advance of warrants for other groups.

This approach is, to an extent, a necessity. It is clear
that the OTP does not have the capacity or resources to investigate all groups
at the same time. However, delays caused by investigating one group at a time
can undermine perceptions of his office’s impartiality in affected
communities, particularly in societies that are ethnically polarized, and can
exacerbate ethnic tensions.

Our research in the Ituri district of the DRC suggests that
the prosecutor’s use of the sequential approach had significant negative
implications in the area. The Ituri conflict, the initial focus of the
ICC’s investigation in the DRC, began in 1999 when a long-standing land
dispute between Hema pastoralists and Lendu agriculturalists spiraled out of
control, fueled by international and local actors involved in Congo’s larger war.[159]In early 2006 the ICC arrested Thomas
Lubanga, the head of the Union of Congolese Patriots, a prominent Hema-based
militia group. Nearly 18 months later, the ICC arrested Germain Katanga, chief of staff of a Ngiti-based militia (the Ngiti are closely linked to the
Lendu). In February 2008, Mathieu Ngudjolo, former chief of staff of the
Nationalist and Integrationist Front (FNI), a Lendu-based militia, was brought
into ICC custody.

The arrest of senior officials from both the Hema and
Lendu-based militias was an important development. However, field research
conducted by Human Rights Watch in the nearly 18-month period following
Lubanga’s arrest consistently showed that the absence of arrest warrants
against Ngiti and Lendu militia leaders led to a strong perception within the
Hema community that the ICC is carrying out “selective justice.”[160]The arrests of Katanga and Ngudjolo may
address these perceptions to an extent. Nonetheless, we are concerned that the
extensive delay in moving forward may have caused irreparable damage to
perceptions about the ICC’s impartiality in the DRC.

There are indications that the prosecutor may be evolving
his approach to investigations. The term “sequencing” does not
appear in recent statements of OTP strategy.[161] There
are also promising indications that the prosecutor intends to investigate both
sides implicated in the violence in Kenya simultaneously.[162]
Leaders of both parties there were implicated in the violence that began
following the disputed December 2007 elections. If in his investigations the
prosecutor is thought to favor one side or the other, it could spark violence,
particularly as elections are on the horizon for 2012. The OTP’s new
willingness to broaden its approach to simultaneous investigations is thus
particularly welcome. This new approach, if adopted for other situations,
including ongoing investigations in the Kivus in eastern DRC, will help
maximize the court’s impact by reinforcing the impression that it is an
impartial, apolitical institution.

2. Selection of cases

The types of cases—meaning specific allegations
against individual defendants—that are selected for prosecution will have
important implications for the ICC’s impact among the communities most
affected and for its overall influence in limiting impunity. Since senior
leaders considered to bear “the greatest responsibility” are often
beyond the reach of national judicial authorities because of their official
positions, the ICC’s pursuit of them is essential. As discussed earlier,
effectively targeting those in senior leadership can also expose the structure
of criminality that led to the commission of widespread crimes.[163]

In Congo, the Office of the Prosecutor has so far pursued
senior members of rival ethnic militias in Ituri. While we welcome the arrests
of Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo by the ICC, these rebel
commanders did not act alone in terrorizing civilians. Indeed, many of those
whom we interviewed in Ituri said that in order for justice to be achieved, the
court must pursue accountability for those who supported militia groups in
Ituri.[164]

Our research in Congo, covering the period from 1998 to this
writing, suggests that key political and military figures in Kinshasa, as well
as in Uganda and Rwanda, also played a prominent role in creating, supporting,
and arming the militias associated with Lubanga, Katanga and Ngudjolo. The
availability of political and military support from these external actors
encouraged local leaders in Ituri to form more structured movements and
significantly increased their military strength. We, therefore, urge the
prosecutor to investigate senior officials in Kinshasa,[165]
Kampala, and Kigali and, evidence permitting, to bring cases against them. By
expanding investigations to reach those most responsible who will not otherwise
be held to account, the court will demonstrate the cost of fomenting violence
and enhance its deterrent effect.

The selection of incidents and charges against these alleged
perpetrators can be just as important to affected communities in measuring the
ICC’s ability to bring justice. It is therefore essential to gather
sufficient evidence to charge alleged perpetrators with the gravest crimes that
are most representative of the victimization. This is crucial in reinforcing
the ICC’s capacity to adequately address the suffering experienced in the
communities most affected. While the prosecutor’s office appears to have
implemented this policy in many of its arrest warrants, the approach was not
followed in cases against Thomas Lubanga and Bosco Ntaganda in Congo.

Despite numerous allegations documented by Human Rights
Watch and others that Lubanga’s UPC militia committed a range of horrific
crimes, including murder, torture, and rape,[166] the
ICC has only charged him and his fellow former UPC member Ntaganda with the war
crimes of enlisting and conscripting children under the age of 15 years as
soldiers and of using them to actively participate in hostilities in 2002-2003.[167]
In the course of our field research in Ituri, civil society representatives,
community leaders, and foreign observers there expressed to us disappointment
and disbelief that the prosecutor had at that time only brought charges in
relation to the enlistment, recruitment, and use of child soldiers against
Lubanga. Our research in Kinshasa revealed a widespread belief that the charges
against Lubanga and Ntaganda are too limited and do not reflect the gravity of
the crimes that the UPC allegedly committed in Ituri.

Although there are reasons for the initially limited set of
charges (namely Lubanga’s imminent release from Congolese custody), they
are a source of legitimate dissatisfaction among affected communities and have
contributed to rumors about the court being biased, a perception worsened by
the fact that the ICC pursued a broader set of charges against the opposing
militia leaders, Katanga and Ngudjolo. Basing investigative staff in the field
may help the OTP avoid some of these problems by strengthening their
understanding of the nuances and context of a given situation. Only with a
clear understanding of context can an investigative and prosecutorial strategy
be developed that will maximize the court’s impact.

The ICC was established with the aim of ending impunity for
serious crimes and thus contributing to their prevention. There are some
indications that the court in its early phases has had some positive effect in
both those areas. However, for the court to realize its potential in this
regard states parties need to demonstrate a strong commitment to the court and
the enforcement of its orders. In particular, states parties need to ensure ICC
arrest warrants are executed. Similarly, for the court to be a catalyst for
national prosecutions of grave crimes, it will need to be seen as an effective
institution with capacity to handle prosecutions for serious atrocities when
they occur. If the court is viewed as a paper tiger, its hoped-for deterrent
effect and its impact on spurring domestic prosecutions will diminish.

1. Deterrence

Extrapolating from national experience, we have seen that
the higher the probability of apprehension and punishment the greater the
likely deterrent effect on some premeditated crimes. The deterrent effect for
the ICC will likely hinge on the degree to which punishment for those crimes
becomes more certain. In the international arena that is subject to a greater
number of variables and will depend to a large extent on the willingness of
states parties to support the court and press for cooperation, in particular
with respect to arrest warrants. It likely will be years before the court has
established a track record and developed its standing as an effective
institution willing to act when national authorities are unwilling or unable to
do so. Nonetheless, Human Rights Watch has found some anecdotal evidence
indicating that there may be some short-term benefits arising from the threat
of prosecution.

The day Thomas Lubanga was transferred to The Hague to face
charges before the ICC, March 17, 2006, Human Rights Watch researchers had a
meeting with a Congolese army colonel to discuss crimes committed by his own forces
against the Mai Mai, a local militia. As the discussion turned to war crimes,
the colonel sat up and said, “I don’t want to be like Lubanga! I
don’t want to be transferred to The Hague!”[168]Human Rights Watch researchers have heard
similar sentiments expressed by militia leaders on other occasions. In a
September 2006 discussion with a militia leader in Ituri who was engaged at the
time in peace discussions with the Congolese government, the commander asked
Human Rights Watch for further information about what constituted war crimes,
having heard a broadcast from The Hague on proceedings against Lubanga a few
days earlier. When the elements of the crimes were explained to him, he asked,
“So could I also be transferred to the Hague if I did those things?”
When informed that if he had done such things, it was a possibility; he put his
head in his hands and repeatedly said, “I had no idea. I had no
idea.”[169]

Similarly, across the continent in the Central African Republic, in meetings with rebel leaders that occurred immediately
following Lubanga’s transfer to The Hague, rebel commanders told Human
Rights Watch researchers that they “did not want to end up before the
ICC.” Before learning of the ICC prosecution of Lubanga on charges of
enlisting and conscripting child soldiers, rebel commanders readily admitted
that there were many children in their ranks, including some as young as 12,
and that many were armed and participated in combat. Upon learning that use of
children as combatants is a serious violation of international humanitarian
law, one rebel commander spent two days explaining to Human Rights Watch
researchers that he had not known using child soldiers was a crime, that it was
“a misunderstanding,” and that he was not a criminal. He immediately
offered to demobilize the child soldiers as long as their security could be
guaranteed, and asked Human Rights Watch to contact UNICEF for assistance with
the demobilization. The children were in fact demobilized.[170]

The nongovernmental International Center for Transitional
Justice, and children’s rights advocates in the DRC, have also found that
“Lubanga’s arrest had an enormous educational impact, making clear
what was not previously understood: that recruiting, enlisting, and using children
to fight is a war crime.”[171]
Although the repercussions are not all positive (awareness has negatively
affected demobilization since armed groups do not want to be implicated in
crimes), Lubanga’s arrest has dramatically increased awareness among Congo warlords and militia leaders that use of children as participants in conflict is
unlawful.[172] In the
long run, the awareness that recruiting children to be soldiers is a criminal
act that may result in prosecution may help discourage use of child soldiers.[173]

2. National Prosecutions

The ICC’s most significant impact may be its role in
promoting the development of domestic enforcement tools and the rule of law. Because
the ICC only has jurisdiction over cases when national jurisdictions are
unwilling or unable genuinely to carry out the investigation or prosecution,
states have incentive to bring cases that they might not otherwise pursue. The
threat of ICC prosecutions has already played a role in strengthening or
galvanizing the establishment of domestic mechanisms to deal with these crimes.
In each country in which the ICC is investigating, steps have been
taken—at least nominally—to start domestic proceedings. Even in
countries where ICC investigations are being considered but have not yet been
opened, steps have been taken to hold perpetrators to account that otherwise
would not have occurred, in order to keep the cases in national courts. This
progress, described below, can be amplified through the types of initiatives
under discussion in the complementarity section of stocktaking, discussed in
detail in Chapter V.

In Uganda before the ICC’s
involvement, the Ugandan Parliament had passed a law providing a blanket
amnesty to rebels who surrendered to the government. However, interest in
national prosecutions gained momentum during the peace talks between the
government and the Lord’s Resistance Army (LRA) which began in July 2006
because they were seen as an attractive alternative to ICC prosecutions of LRA
leaders. Although the final peace accord was never signed, agreements created
as part of that process resulted in legislation providing for a special
division of Uganda’s High Court to prosecute those who planned or carried
out war crimes or other widespread, systematic, or serious attacks on
civilians.[174]The agreement also included measures to
establish a special investigative unit headed by Uganda’s director of
public prosecutions, and a registry with authority to facilitate protection of
victims and witnesses.[175] Judges,
registrars, prosecutors, and investigators have been appointed, and legislation
recently passed, but not yet signed into law, will enable a war crimes division
in the Ugandan high court to prosecute Rome Statute crimes.[176]

In the DRC, in 2004 the military courts launched their own
prosecutions for war crimes and crimes against humanity relying on definitions
of crimes contained in the Rome Statute.[177]Although only a handful of trials have been
held so far against mainly low-ranking soldiers (and there have been fair trial
concerns with those), in each of these cases the court has applied definitions
of crimes in the Rome Statute.[178]These cases represent small but significant
steps forward in addressing the long-standing culture of impunity in the DRC. In
the Central African Republic (CAR), the possibility of ICC prosecution has put
pressure on the government to respond to abuses committed by its armed forces
as part of a conflict in the north. In September 2008 the CAR government
established an office for international humanitarian law within the army, which
is responsible for conveying the laws of war to its members.[179]

In Darfur, the government of Sudan’s refusal to
cooperate with the ICC has in part been made on the basis that it has the
capacity to try cases in national courts and therefore the cases are inadmissible.
To bolster its claim, the government has periodically announced measures
ostensibly designed to improve domestic accountability. On June 7, 2005, one day after the ICC prosecutor announced he was opening investigations into the
events in Darfur, the Sudanese authorities established the Special Criminal
Court on the Events in Darfur to demonstrate the government’s ability and
willingness to handle prosecutions domestically.

On September 18, 2005, a Specialized Prosecution for Crimes
against Humanity Office was established in Khartoum by a decree from the acting
minister of justice.[180]In November 2008 the government passed
amendments to Sudan’s criminal code to include international crimes such
as crimes against humanity and war crimes.[181]Though no real progress has been made
towards ending impunity for atrocities in Darfur and lack of political will
remains an obstacle for genuine proceedings, the institution of legal reforms
is still a positive step.

In Kenya, the Commission of Inquiry into Post-Election
Violence (“Waki commission”), which was appointed by the coalition
government as part of the mediation process, recommended in its October 2008
report the creation of a special tribunal with an international component to
try those most responsible for the attacks.[182] The
commission added teeth to its recommendation by handing a sealed envelope
containing a list of leading suspects for the crimes and supporting evidence to
the mediator, Kofi Annan, with the instruction that the envelope be passed to
the ICC prosecutor should efforts to set up the tribunal fail.[183]
Only hours before the commission’s initial deadline for names to be
handed over to the ICC, the Kenyan prime minister and president signed an
agreement to create a special tribunal in December 2008.[184]
An International Crimes Bill was fast-tracked through parliament in December
2008 in accordance with Waki commission recommendations.[185]
Though efforts for national accountability ultimately stalled, the existence of
the ICC and the threat of ICC prosecution changed the discussion about
accountability in Kenya.

Even in countries where the prosecutor is undertaking
preliminary analysis to determine whether to open an investigation, the looming
possibility of ICC involvement has spurred national enforcement efforts. For
example, at various times, the Colombian government has proposed bills or
initiatives that could let paramilitaries or their accomplices off the hook for
their crimes. The ICC prosecutor’s expressions of interest in the
Colombian proceedings have received extensive coverage in the Colombian media,
and may have been one reason why the Colombian government has not followed
through with those initiatives. For the ICC to continue to have this sort of
impact, however, it must be seen as a robust institution with capacity to take
on new cases. As long as prosecutions are a credible threat, there is incentive
for national courts to exercise preemptive authority over its cases. Full
support of states parties for the institution is necessary to make this a
reality.

VI. Peace and Justice

A. Introduction

The adoption of the Rome Statute, and its speedy entry into
force, mark a high point in the battle against impunity. Abusive leaders, whose
crimes would have gone unaddressed a mere 20 years ago, now must consider the
possibility that they may one day have to answer for their crimes.

But the threat of prosecutions is not without its
complications. Because the ICC can, and does, issue arrest warrants while
conflicts are ongoing, it has already created considerable controversy over
whether the prospect of prosecution stands in the way of peace. Negotiators and
diplomats, under pressure to end a conflict, sometimes view the ICC as an
insurmountable obstacle to their work. They fear that the prospect of arrest
will cause abusive leaders to cling to power more tenaciously and thus prolong
the conflict. The ICC’s mandate to investigate and prosecute war crimes,
crimes against humanity, and genocide in the course of ongoing conflicts means
that this controversy is likely to arise more often in the future. Already the
call to suspend or “sequence” justice in exchange for a possible
end to a conflict has arisen in conjunction with the court's work in a number
of country situations. For this reason, managing tensions that may arise in the
context of negotiations is an area that can benefit from closer examination of
past experience.

The important question of
pursuing justice for grave international crimes and its interface with peace
negotiations is the fourth stocktaking topic. While the topic does not lend
itself to a resolution or pledges in Kampala, greater clarity on this subject
is nonetheless crucial for the future of the court’s work.

In preparations for this topic and interventions in Kampala,
we urge states parties to consider the relationship between peace and justice
with a view toward affirming the integral relationship between peace and
justice. It is important to highlight the importance of justice as an objective
in its own right and not a tool toward other ends. In addition, the review conference
is an opportunity to take note of some of the misperceptions about the
relationship between the two important objectives discussed above and reflect
on country experience to date pursuing these two objectives simultaneously to
end conflicts where horrific crimes have been committed. Finally, we urge states
parties to affirm that forgoing accountability often does not result in the
hoped-for benefits, while remaining firm on justice can yield short- and long-term
benefits for peace.

In terms of concrete outcomes for this topic, our
expectation is that serious, substantive consideration of the relationship
between peace and justice will be reflected in a summation of the session, and
that states parties will move beyond stale conventional wisdom and achieve a
better understanding of the relationship between these
objectives.

B. The importance of justice in securing peace

There is ample experience to demonstrate that
failing to address serious human rights crimes can lead to unforeseen negative
results. Explicit amnesties that grant immunity for war crimes, crimes against
humanity, or genocide, may effectively sanction the commission of grave crimes
without providing the desired objective of peace. All too often a peace that is
conditioned on impunity for serious crimes is not sustainable.[186] Even worse, it can set a precedent of impunity for atrocities that
encourages further abuses. Tolerance of impunity can in the longer term also
contribute to renewed cycles of violence both by implicitly permitting unlawful
acts and by creating an atmosphere of distrust and revenge that may be
manipulated by leaders seeking to foment violence for their own political ends.
If the objective is more than a brief break in hostilities, then leaving the
past in the past is not an option.

In recognition of experience demonstrating that general
amnesties covering war crimes, crimes against humanity, and genocide are
neither effective nor consistent with efforts to end impunity, the UN
Secretary-General issued guidelines prohibiting appointed envoys from
associating themselves with agreements that provide amnesties for these crimes.
Blanket amnesties are no longer as common as they once were. A recent study by
the Humanitarian Dialogue Center shows that general amnesties that cover war
crimes, crimes against humanity, and genocide have been used less frequently
since 2000 than in previous years.[187]

Yet indications that blanket amnesties may be declining is
no reason to rest easy. Implicit, or de facto amnesties, can have equally
destructive consequences. In Sudan, longstanding impunity for the state’s
use of brutal ethnic militias to attack civilians in the south set a precedent
that suggested that there would be no price to pay for similar atrocities
elsewhere. This factored into Khartoum’s decision to use the same
strategy again with devastating results for civilians in Darfur. The peace
agreement that ended the north-south civil war did not include provisions for
accountability because negotiators were concerned that raising the issue would
disrupt the talks.

De facto amnesties may also take the form of incorporating
alleged rights abusers into the government. Negotiators have sometimes opted to
include human rights abusers in a coalition government or a unified military in
the hope of neutralizing them or enhancing stability. But including alleged
perpetrators in government has not proved to be the panacea that it was hoped
to be. While efforts to bring human rights abusers to justice undoubtedly
present challenges, making deals with criminal suspects in order to achieve
peace can have far-reaching negative consequences. Rewarding alleged war
criminals with government positions might encourage others to engage in
criminal activity with the expectation of receiving similar treatment. It may
also erode public confidence in the new order by sending a message to the
population about the acceptance of such abuses and by further entrenching
impunity.

1. Afghanistan

After the fall of the Taliban in November 2001, the United
Nations brought together leaders of Afghan ethnic groups in Germany to create a road map for representative government in Afghanistan.[188]
The resulting Bonn Agreement called for creation of a loya jirga (grand
council), which was convened in June 2002, to choose an interim government.[189]

The loya jirga’s selection process explicitly called
for the exclusion of delegates who had engaged in human rights abuses, war
crimes, looting of public property, or the drug trade.[190]However, the Special Independent Commission
for the Convening of the Loya Jirga was unable to monitor and enforce this
prohibition. Nor was it made a priority: the warlords’ cooperation was
seen by the UN facilitator Lakhdar Brahimi as crucial to the success of the loya
jirga, so there was little willingness to confront the issue of their past
records.[191] The EU
special envoy to Afghanistan, Francesc Vendrell, described the sentiment at the
time: “In early 2002, the Americans were relying on the warlords and
commanders to pursue the War on Terror. There was a lot of emphasis on
stability and therefore justice had to wait. These unsavoury characters were
seen as providing stability.”[192]

In 2005-06 Human Rights Watch documented that many leaders
implicated in egregious human rights abuses in the 1990s became Afghan ministry
officials or presidential advisors, or controlled puppet subordinates who held
official positions.[193] They
include several of the worst perpetrators from Afghanistan’s recent past,
such as Abdul Rabb al Rasul Sayyaf, Mohammed Fahim, Burhanuddin Rabbani, Gen.
Abdul Rashid Dostum, and Karim Khalili, who despite having records of war
crimes and serious abuses during Afghanistan’s civil war in the 1990s
have been allowed to hold and exploit positions of power.[194]
Mohammed Fahim, whose troops were implicated in abuses such as rape and summary
executions in 1993, is now serving as first vice president of Afghanistan.

Abusive actions by local strongmen and their forces have
undermined the government’s legitimacy and caused widespread fear and
cynicism among Afghans.[195] As
Afghan human rights activist Nader Nadery said, “The militia leaders
became part of the structure and began using their powers again. They made
institutions unprofessional, unqualified and corrupt. There’s a culture
of impunity. Everyone thinks they’re immune from prosecution, so they do
whatever they want.”[196]As a result, by 2006 the Taliban and other
insurgent groups in Afghanistan had gained increased public support. A December
2008 International Crisis Group report on policing in Afghanistan concluded
that the lack of rule of law lies at the heart of much popular disillusionment
and that the weakness of law enforcement has contributed to the appeal of
insurgents in Afghanistan.[197]The ongoing lawlessness helps the Taliban
portray its rule in the 1990s as one of relative law and order.[198]The Taliban is able to use the presence of
warlords in the government and the poor perceptions of police to discredit
President Karzai’s administration and its domestic backers.

Incorporating warlords into the government also minimizes
chances that Afghans will ever see accountability for the crimes they have
suffered, despite the fact that large majorities favor prosecutions.[199]The parliament recently enacted a general
amnesty which states that all those who were engaged in armed conflict before
the formation of the Interim Administration in Afghanistan in December 2001
“shall enjoy all their legal rights and shall not be prosecuted.”[200]
Though victims and their families are entitled to bring civil or criminal
claims, doing so is dangerous and not likely to be a viable path to justice. The
amnesty law is further demonstration of the entrenchment of the culture of
impunity in Afghanistan that resulted from choosing not to address crimes from
its past.

2. Democratic Republic
of the Congo

A pervasive culture of impunity has also been one of the
greatest obstacles to sustainable peace in the Democratic Republic of Congo. In
an effort to buy compliance with the transition process, the government gave
posts of national or local responsibility, including in the army and police, to
dozens of people suspected of committing international human rights violations.[201]One result of this policy is to create
incentives for armed groups to engage in violence in the hope of being rewarded
with government or army positions in exchange for laying down their arms. In
addition, the decision not to hold perpetrators to account for their crimes has
in some cases left them free to continue to wreak havoc in the region. The
consistent failure to hold perpetrators to account has created an environment
in which former rebels who have been incorporated into the armed forces
continue to murder, torture, and rape civilians.[202]A number of other key factors have
contributed to the brutal violence in eastern Congo, including competition for
control over natural resources, land rights, and ethnic cohabitations, but
incorporating warlords into the armed forces in an effort to obtain peace has
only worsened the situation.

The 2002 agreement forged in Sun City to establish a
transitional government for the DRC excluded the possibility of amnesties for
war crimes, crimes against humanity, and genocide. However, individuals with a
known record of human rights abuses were integrated into the government and the
army, with officials making no serious effort to investigate or prosecute them.[203]
Known rights abusers were promoted or granted important posts with few
diplomats condemning the promotions.[204]The promotions, the lack of justice, and the
failure to launch a credible truth and reconciliation commission (also
established by the Sun City accords), sent a clear signal early on that the new
government was unwilling or unable to end the culture of impunity.

The signal was a dangerous one as peace remained elusive.
Continued violence, with devastating results for civilians, was perceived by
armed groups as the best way to strengthen their negotiating position or secure
a seat at the table. As one commander told Human Rights Watch in 2003,
“Our government only listens to guns and violence and we need to make
them hear us.”[205]

The negative consequences of rewarding warlords responsible
for serious human rights abuses was most evident in Ituri, often described as
the bloodiest corner of Congo, where tens of thousands were brutally
slaughtered on an ethnic basis between 1999 and 2009.[206]
The transitional government lacked effective control of the area and six armed
groups (backed at different times by Uganda, Rwanda, and the Congolese
government) vied for control of the region.[207]

In August 2003 President Joseph Kabila called the leaders of
the armed groups to Kinshasa to discuss establishing order in Ituri. On
December 11, 2004, despite mounting evidence of their abuses, Kabila signed a
decree granting five leaders of the Ituri armed groups positions as generals in
the newly integrated Congolese army and a further 32 militiamen positions as
lieutenant-colonels, colonels, and majors. The generals were welcomed into army
ranks in January 2005.[208] The
Congolese authorities contended that integrating commanders with abusive
records was a way of removing them from Ituri, thus making it easier to end the
fighting there.[209]But by doing so the government reinforced
the message that brutalities would not only go unpunished, but might be
rewarded with a government post. The message was clear: violence brings
rewards.[210]

Within six months of the appointments, new armed groups were
formed in Ituri all claiming, as others had done before, that they represented
marginalized communities and demanding high ranks in the army. The failure to
adequately disarm combatants and to provide peace dividends for local
communities contributed to the emergence of the new armed groups, but so did
the perception that violence was an effective route to power. These groups
continued the terror tactics that previous armed groups had used so
successfully: killing civilians, raping women and girls, and arbitrarily
arresting and torturing those who opposed them.

In August 2006, Congolese government officials, supported by
the UN, once again held peace discussions with the Ituri armed groups. Two
months later, in November 2006, the groups signed a new peace agreement.[211]Their leaders were all granted the rank of
colonel in the Congolese army. Dozens of others were appointed as
lieutenant-colonels and majors. One of the newly appointed officers later
remarked to Human Rights Watch, “Maybe if we had killed more people, I
would have become a general.”[212] A
similar pattern has emerged in Katanga province.

The Congolese government has yet to demonstrate that it has
learned from its failed policy of placating rights abusers. In August 2006, the
International Criminal Court issued an arrest warrant against UPC leader Bosco
Ntaganda for the war crime of enlisting and conscripting children under the age
of 15 and using them in hostilities between 2002 and 2003 in Ituri.[213]
The Congolese government, which requested the ICC to investigate crimes in Congo, and which to date has been cooperative with the court, in this case failed
dramatically in its legal obligation to arrest Ntaganda. In a televised press
conference on January 31, 2009, President Kabila invoked the peace versus
justice dilemma, stating that he faced a difficult choice between justice and
peace, stability, and security in eastern Congo. He said his choice was to
prioritize peace. Congolese authorities attempted to legitimize Ntaganda as a
“partner for peace,” reinforcing the perception that those who
commit heinous crimes against civilians in Congo will be rewarded rather that
punished.[214] Dozens
of local human rights organizations condemned the decision. Ntaganda has since
served as a high-ranking advisor in the army that has the full backing of UN
peacekeeping forces in Congo, despite his status as a wanted man at the ICC.[215]

3. Sowing seeds for
future violence

Absence of accountability in fair and impartial trials for
those most responsible for crimes leaves the desire for retribution through
legitimate channels unsatisfied. Without individualizing guilt, the notion of
collective responsibility for crimes has greater resonance and it is easier for
blame focused on a group to be passed from one generation to the next.

A well-known example of this is Yugoslavia. Assumptions of
collective ethnic guilt rooted in atrocities dating back to the Second World
War were important in enabling ultra-nationalist politicians in the 1990s to
divide communities in Bosnia, Croatia, and Serbia and help sow the seeds for
intercommunal violence. Over 40 years after the end of the Second World War,
the lack of accountability for atrocities laid the groundwork for propaganda
seeking to instill in Serbs a fear of genocide. Influential academics at the Serbian Academy of Arts and Sciences in 1986 tapped into deeply held sentiments when they
proclaimed that except during the Ustasha (Croatian pro-Nazi) period during the
Second World War, “Serbs in Croatia have never been as endangered as they
are today.”[216]
Serbian media gave increasing prominence to this alleged threat facing Serbs in
Yugoslavia in the late 1980s and early 1990s.

The ICTY noted that following Slovenia’s and
Croatia’s declarations of independence, “[p]ro-Serb propaganda
became increasingly visible ... The Serb media propagandised the idea that the
Serbs had to arm themselves in order to avoid a situation similar to that which
happened during World War II when the Serbs were massacred. Terms like
‘Ustasa’, ‘Mujahideen’ and ‘Green Berets’
were used widely in the press as synonyms for the non-Serb population.”[217]
The failure to establish individual accountability and address the past in Yugoslavia during Tito’s iron-fisted reign created suppressed resentments that were
later tapped by ambitious politicians for their own political and nationalistic
ends. In other places as well, including Kenya and Burundi, previous
unaddressed episodes of violence have been used to foment new cycles of
violence. [218] These
are some of the reasons why justice is important for securing peace.

In the short term, it is easy to understand the temptation
to forego justice in an effort to end a war. Peace negotiations may be carried
out almost literally at gunpoint, with war-weary participants desperate to end
the conflict at any price. However experience has shown that efforts at
justice, so often just assumed to be antagonistic to peace negotiations, do not
categorically have the predicted dampening or damaging effect on peace talks.

For example, on May 27, 1999, the ICTY announced its most significant indictment: that of Yugoslav President Slobodan Milosevic and four
other top officials for “murder, persecution, and deportation in
Kosovo” from January 1 through May 1999.[219]
The indictment was announced in the midst of the armed conflict between Serbia and NATO forces over Kosovo. The conventional wisdom at the time was that the
indictment would make the situation in Kosovo worse and would likely undercut
the prospect of any compromise by Milosevic. The Russian Foreign Ministry said
the war crimes indictment “will add to the obstacles to a Yugoslav
settlement” and “severely undermine” the authority of the
negotiators. Russia’s envoy to the Balkans, Viktor S. Chernomyrdin,
denounced the warrant as a “political show” and
“incomprehensible and unpleasant.”[220]

Yet less than a week later, on June 3, negotiators announced
that Milosevic had accepted the terms of an international peace plan for
Kosovo.[221]
Despite their strong opposition at the time, when asked about the indictment
and its effect on the talks, the Russian and Finnish intermediaries later
admitted that the indictment did not affect negotiations and was never on the
agenda.[222]Because Milosevic did not travel much and
felt secure at home, he did not fear ending up in The Hague.[223]

The ICC prosecutor’s request for an arrest warrant
against Sudan’s President al-Bashir in July 2008 similarly triggered a
backlash by numerous actors, including the African Union and the Organization
of the Islamic Conference, which asked the UN Security Council to defer the
ICC’s work in Darfur for 12 months out of concern about the possible
impact of the ICC’s work on “efforts aimed at promoting lasting
peace.”[224] Many
were also understandably concerned about the potential impact on UNAMID, the
AU/UN hybrid peacekeeping mission in Darfur. Shortly after the
prosecutor’s request for a warrant was made, one of Bashir’s top
advisors threatened various reprisals including expulsion of UNAMID, stating:
“Send them out because the U.N. has declared us Public Enemy No. 1, why
shouldn’t we?”[225]Sudan experts Alex de Waal and Julie Flint
publicly criticized the ICC prosecutor for pressing charges against high
officials in the government of Sudan, stating, “Attempts to deploy UNAMID
[the AU/UN peacekeeping mission in Sudan] in Darfur are at a critical point. At
this sensitive time, to lay charges against senior government officials, and to
criminalise the entire government, will derail attempts to pull Sudan from the brink.”[226] They argued
that justice should wait until after those culpable are no longer in positions
of authority.[227]

Following the issuance of arrest warrants, the Sudanese government
expelled 13 international aid agencies, putting further at risk millions
vulnerable to malnutrition and disease. However, the other anticipated
devastating consequences flowing from the warrant have not occurred.[228]Peace talks, which had not been robust
before the prosecutor’s announcement, continued after the
prosecutor’s announcement and after the arrest warrant had been issued.
On November 12, 2008, al-Bashir announced an immediate unilateral ceasefire and
the government of Sudan and the rebel movements pledged to work on a framework
agreement for peace talks.[229] In
February and May 2009, the government of Sudan and representatives of the
Justice and Equality Movement (JEM) met in Qatar for peace talks and on February
23, 2010, agreed to a framework for peace discussions, which committed the two
parties to an immediate ceasefire, the release of prisoners, and the
negotiation of a final peace agreement.[230]

The warrants also did not slow the government of Sudan’s cooperation with deployment of peacekeepers. Indeed, UNAMID deployment rose
significantly following the prosecutor’s announcement. Between July 31, 2008, and January 21, 2010, deployment of UNAMID’s military, civilian, and
police personnel rose from 12,341[231] to
24,223.[232] Over
3,000 UNAMID personnel were deployed in the first few months after the
prosecutor’s announcement.[233] Also
in the months following the prosecutor’s announcement, the government of Sudan agreed to provide blanket clearance for airlift operations and to remove other
administrative hurdles to UNAMID.[234]

The Kosovo and Darfur experiences suggest at a minimum that
indictments need not upend peace talks.

In other instances, justice may even have helpful side
benefits. Justice is an important end in and of itself, and is not an
instrument to bring about political marginalization. But arrest warrants sought
as a means of bringing to justice leaders responsible for serious international
crimes have also at times had the effect of marginalizing those leaders in ways
that may benefit peace processes. This was true with Liberian President Charles
Taylor and Bosnian Serb leader Radovan Karadzic. The ICC warrants for LRA
leaders may have also contributed to the group’s at least temporary
marginalization from its base of support in Sudan, pushing it towards more
serious peace negotiations in Juba in 2006.

1. Charles Taylor

On June 4, 2003, the prosecutor of the Special Court for Sierra Leone “unsealed” an indictment against Charles Taylor as one of those
“bearing the greatest responsibility” for war crimes, crimes
against humanity, and other serious violations of international humanitarian
law committed in Sierra Leone.[235]The unsealing of the indictment against Taylor caused a great deal of consternation at the United Nations Secretariat and
elsewhere.[236]The cause of concern was triggered in part
by the timing of the announcement, as it coincided with the opening day of
Liberian peace talks convened in Accra, Ghana.[237]
Peace, which had mostly been elusive in Liberia since 1989,[238]
was a priority, and many felt that the indictment would undermine chances at
reaching a negotiated settlement.[239]The African presidents who were meeting in Accra to work on the peace process felt ambushed by the news and betrayed, as they had not
been informed of the indictment earlier.[240]
Ghanaian Foreign Minister Nana Akufo-Addo expressed his embarrassment and
stated a belief held by many that the prosecutor’s action “in
unsealing the indictment at this particular moment has not been helpful to the
peace process.”[241]

In retrospect, however, it is clear that the unsealing of Taylor’s indictment was a key factor in bringing peace to Liberia. The International Center for Transitional Justice’s study of the 2003 peace negotiations
concluded that the reason the 2003 agreement ultimately succeeded while over a
dozen previous agreements had failed was because Taylor offered to vacate the presidency
and not take part in transitional elections. That offer resulted directly from
his indictment by the Special Court.[242]The report noted almost universal agreement
among those present at the talks—even those who had been skeptical at the
time—that the unsealing of the indictment had a largely positive effect.[243]
Furthermore, the expected retaliatory violence in Liberia resulting from the
indictment never occurred. Although other important factors worked with the
indictment to bring about peace in Liberia—including the impending rebel
offensive threatening the capital, the involvement of the international
community, and blocking by the peacekeeping force the Economic Community of
West African States Monitoring Group (ECOMOG) of arms’ delivery to
Taylor—the Taylor case shows that an indictment may inadvertently
strengthen peace processes and that the feared consequences resulting from
indicting a sitting head of state do not always come to pass.

2. Radovan Karadzic

Similarly, the indictment of Radovan Karadzic facilitated
peace talks to end the war in Bosnia and Herzegovina. Negotiations to end that
conflict opened near Dayton, Ohio, in early November 1995, less than four
months after the worst atrocity in Europe since the Second World War: the
massacre of over 7,000 men and boys following the fall of the Bosnian Muslim
enclave of Srebrenica on July 11, 1995. On July 24, 1995, less than two weeks after the fall of Srebrenica and in the midst of the conflict, the
International Criminal Tribunal for the former Yugoslavia confirmed indictments
against Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. The
charges included genocide, crimes against humanity, and war crimes for crimes
alleged to have occurred between 1992 and 1995 in several locations across Bosnia, including Sarajevo. A second indictment against Karadzic and Mladic was confirmed
on November 16, 1995, during the Dayton peace negotiations. It charged both men
with genocide, crimes against humanity, and war crimes based on the mass
execution of civilians after the fall of Srebrenica.

At the time negotiations in Dayton began, a number of
politicians and political commentators suggested that the ICTY’s work was
getting in the way of peace.[244]
Indeed, the former ICTY chief prosecutor Richard Goldstone said that after he
indicted Karadzic and Mladic, the UN secretary-general was furious, castigating
the prosecutor in a meeting shortly afterwards and asking why he had not been
consulted.[245]

However, the indictment of Karadzic ultimately aided the Dayton peace accord. If Karadzic, the Bosnian Serbs’ political leader, had not been
indicted, he would have likely attended the peace conference. Because those
meetings began only two months after the massacre at Srebrenica, Bosnian Muslim
and Croat leaders would not have entered the same room or sat at the same table
with Karadzic.[246]A US State Department official said the
tribunal “accidentally served a political purpose: it isolated Karadzic
and left us with Slobo [Slobodan Milosevic].”[247]
In his memoirs, the US negotiator Richard Holbrooke said he made it very clear
to Milosevic that Mladic and Karadzic could not participate in a peace
conference. When Milosevic said the attendance of the indicted men was
necessary for peace, Holbrooke offered to arrest them personally if they set
foot in the United States.[248]

Thus the ICTY’s indictments, rather than being an
obstacle to peace negotiations, helped move them forward.

3. The Lord’s Resistance Army

In Uganda as well, community leaders and commentators feared
the involvement of the ICC would end all hope for peace talks with the
Lord’s Resistance Army which had been terrorizing civilians in northern Uganda since 1986. Acholi leaders said that the issuing of “international arrest
warrants would practically close once and for all the path to peaceful
negotiation as a means to end this long war, crushing whatever little progress
has been made during these years.”[249] The
Roman Catholic Archbishop in northern Uganda saw the ICC’s decision to
issue indictments against the LRA leadership as “the last nail in the
coffin” for efforts to achieve dialogue.”[250]

Yet less than a year after the warrants were unsealed, in
mid-2006, the LRA sat down at the negotiating table in Juba for the most
serious peace talks they had had to date. Many believe that the ICC warrants
were one of the factors that pushed the LRA to the table in part by isolating
them from their base of support, the government of Sudan. Not long after the
ICC referral was announced, Sudan agreed to a protocol allowing Ugandan armed
forces to attack LRA camps in Southern Sudan. In October 2005 the government of
Sudan signed a memorandum of understanding with the court agreeing to
cooperate with the arrest warrants issued against LRA commanders. Because Sudan severed many of its ties with the LRA, it forced them into “survival
mode,” at least temporarily.[251] A
local leader noted that a number of LRA combatants defected following the
change in attitude by the government of Sudan.[252]

The increased attention to the conflict resulting from the
ICC’s involvement also galvanized international engagement in the peace
processes for what has been described as “the biggest forgotten,
neglected humanitarian emergency in the world today.”[253]This support was crucial in moving the peace
process forward. Finally agreements made as part of the peace process may yet
help encourage national accountability efforts through the Uganda High Court
Special Division agreed at Juba.

Firm conclusions about the impact of the ICC’s arrest
warrants on peace prospects for northern Uganda are difficult to draw, not
least because the conflict remains unresolved and civilians remain at risk.
However, there are reasons to believe that the ICC’s involvement was not
the reason why the final peace agreement was not signed. LRA leaders have never
made clear their reasons for refusing to sign the final peace agreement;
meanwhile, interim agreements which included justice provisions were
successfully concluded over the course of two years of negotiations. The
justice provisions called for national proceedings, which if seen as genuine by
the ICC’s pre-trial chamber, would have rendered the pending ICC cases
inadmissible. Thus the ICC had been taken out of the equation, though fear of
national prosecutions may have remained an obstacle. Meanwhile, the resumption
of LRA attacks on civilians and the failure of the LRA to implement commitments
to assemble their forces in specified locations while the talks were ongoing
reinforced concerns about the sincerity of the LRA’s commitment to
conclude peace under any circumstances, despite the robustness of the
negotiations.[254] In any
event, ICC involvement did not preclude a dialogue with the LRA as many had
feared, rather it may have been helpful in some unexpected ways.

4. Including accountability in peace negotiations

This is not to say there is not tension between peace and
justice in negotiations. The challenge is to learn from experience where this
tension has been handled well. The negotiations to end the conflict in Bosnia
andHerzegovina are worth examining more closely for this reason.

The 1996 Dayton Peace Accords is an example of an agreement
in which the tension between peace and justice was successfully managed.
Despite rumors of amnesties, the Dayton peace talks did not undermine justice.
Nor did they include provisions for the immediate arrest of ICTY suspects as
Bosnian Muslim leaders had hoped. As one senior US official put it, “The
war crimes tribunal isn’t going to mess with our peace talks; we’re
not going to mess with the war crimes tribunal.”[255]
A negotiator at Dayton pointed out that “the Dayton Framework Agreement,
in its Bosnian constitution, implicitly commended the work of the Tribunal by
stipulating that ‘no person who is serving a sentence imposed by the ICTY
and no person who is under indictment by the Tribunal and who has failed to
comply with an order to appear may stand as a candidate or hold any appointed,
elective or other public office in the territory of Bosnia and
Herzegovina.’”[256] This
provision helped speed Karadzic’s removal from his position in July 1996.
The ICTY’s activities also did not affect Milosevic’s role in
negotiating the agreement: he accepted the Dayton Peace Accord ending the
Bosnian conflict without obtaining an amnesty, even though he too was an
obvious ICTY target.[257]He (and Karadzic, who signed the agreement)
agreed to the above-mentioned clause despite some early misgivings.[258]

The Dayton peace agreement is just one example of an accord
that managed to end a conflict and include provisions relating to
accountability. Numerous other agreements, including those for Burundi and Liberia, have also contained explicit provisions for accountability or truth
and reconciliation measures. These are worth studying for lessons to be applied
in future negotiations.

D. Truth-telling and reconciliation processes as a
complement to criminal justice

Criminal proceedings, of course, are not the only tool that
can assist in addressing the needs of victims. As important as they are, trials
only address a small subset of crimes. Broader truth-telling mechanisms, in
addition to reparations, vetting of “bad actors” from positions in
government and security forces, economic development, and reconstruction are
needed as part of the larger toolbox to move society forward in a way that
respects human rights.

Victims and their families have a right to
know the truth about violations they suffered. The UN General Assembly has
endorsed the principle that victims’ right to remedies includes having
access to relevant information concerning human rights violations.[259] International principles adopted by the former UN Commission on
Human Rights state that “irrespective of any legal proceedings, victims,
their families and relatives have the imprescriptible right to know the truth
about the circumstances in which violations took place.”[260]International human rights
bodies have emphasized the state’s obligation to provide information to
victims, particularly in cases of enforced disappearance. The UN Human Rights
Committee has held that the extreme anguish inflicted upon relatives of the
“disappeared” makes them direct victims of the violation as well.[261]

In addition to informing the victims and their
families, the state has an obligation to inform society in general about human
rights abuses, particularly when the violations are serious.[262] Only by
exposing crimes and those responsible can they be avoided in the future. Nor
does truth-telling undermine existing judicial mechanisms. Rather they
reinforce them both by baring evidence necessary for prosecutions, but also by
helping societies understand and address the failings of the judicial
institutions that allowed crimes to go unpunished. For these reasons, Human
Rights Watch believes truth-telling processes can and should be an important
complement to criminal justice mechanisms, whether international or domestic.

E. Safeguarding the
interests of victims

Victims of any conflict have a wide range of interests and
needs. These may vary over time. While some demand justice immediately, others
would prefer to bury the past. Issues such as security and return home for
those who have been displaced may be a priority, and justice may be viewed as
an obstacle to these other immediate needs. Victims’ interests may change
after they return home and find their believed abusers living in their
communities not having faced any consequences for their alleged crimes. Other
factors may also come into play and add to the complexities involved in determining
what victims’ interests are and how to accommodate their diverse needs.

While consulting victims is an essential part of
reconstructing society and determining the appropriate steps to be taken to
move forward, international legal obligations place some constraints on what
the options are. International law mandates prosecutions for serious crimes,
such as crimes against humanity, genocide, and war crimes, which help to ensure
individual victims’ rights to truth, justice, and an effective remedy,
along with combating impunity. Major international treaties, including the
Geneva Conventions, and the Convention on the Prevention and Punishment of the
Crime of Genocide, place an obligation on states parties to take steps to
provide effective penalties for those responsible for certain crimes.

But it is not only international legal obligations that make
justice necessary. Apart from the potential contributions justice can make to
peace described above, prosecutions send the message to perpetrators and would-be
perpetrators that no one is above the law. They also help to consolidate
respect for the rule of law by solidifying society’s confidence in
judicial institutions. This in turn helps cement peace and stability. As former
UN Secretary-General Kofi Annan said, “Impunity… can be an even
more dangerous recipe for sliding back into conflict.”[263]
Ensuring that justice is done for the most serious crimes is an important way
of safeguarding the interests of victims.

VII. The Crime of Aggression

A. Introduction

The crime of aggression played a prominent role in the
proceedings at Nuremberg and Tokyo following the Second World War. Twelve
accused were convicted on the charge of aggression by the International
Military Tribunal at Nuremberg.[264] On the
other side of the world, the Tokyo International Military Tribunal found 25
defendants guilty of aggression.[265] The
trials following World War II were the first and only time that the crime of
aggression has been prosecuted before an international criminal tribunal.

At the Rome Diplomatic Conference, negotiators could not
agree on a definition of aggression as an individual crime or the role of the
Security Council in its activation. As a compromise, the Bureau of the
conference decided to insert a reference to the crime in the provision
enumerating the court’s subject matter jurisdiction.[266]This compromise solution laid the groundwork
for the negotiation of a definition and the conditions under which the court
would have jurisdiction,[267] as an
amendment to the Rome Statute.

In 2002, the ICC’s Assembly of States Parties convened
a Special Working Group on the Crime of Aggression (“Special Working
Group”) to take negotiations forward. Under the working group’s
auspices, delegates have met at formal sessions of the ASP as well as in
intersessional meetings. These sessions were open to states parties, non-states
parties, as well as nongovernmental organizations. Through this process,
delegates have proposed amending article 5 of the Rome Statute to include the
following definition:

For the purpose of this Statute, “crime of
aggression” means the planning, preparation, initiation or execution, by
a person in a position effectively to exercise control over or to direct the
political or military action of a State, of an act of aggression which, by its
character gravity and scale, constitutes a manifest violation of the Charter of
the United Nations.”[268]

The Special Working Group defined an “act of
aggression as “the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any
other manner inconsistent with the Charter of the United Nations.”[269]

The fundamental difficulty, however, rested in what became
known as the jurisdictional filter—the procedure through which the crime
would become operational. The debate is rooted in controversy over the role of
the Security Council in determining whether an “act of aggression”
has taken place. While linked to interpretation of the UN Charter, which
provides a role for the Security Council on aggression, the dispute is
essentially a political one. It involves a disagreement as to whether the
Council has exclusive authority to determine the existence of an act of
aggression.

Human Rights Watch has not participated in the discussions
on the crime of aggression over the years. On issues of the lawfulness of
waging war, jus ad bellum, we have long believed that we are most
effective as a human rights organization by an approach of strict neutrality.
This neutrality enables us to focus on the conduct of armed forces in war, or jus
in bello, without taking sides, and thereby promote our goal of encouraging
all parties to a conflict to respect international humanitarian law.

B. Concerns regarding the crime of aggression

1. The debate over jurisdictional filters: Consequences
for the ICC’s independence

To facilitate negotiations, at the resumed eighth session of
the ASP in March 2010 the chair highlighted four general combinations to
illustrate possible configurations for the exercise of jurisdiction. In brief,
these ran from more to less restrictive regimes. “Combination 1”
would require acceptance of jurisdiction by the alleged aggressor state and
approval by the Security Council. “Combination 2” would not require
acceptance by the alleged aggressor, but would require the Security
Council’s approval. “Combination 3” would require acceptance
by the alleged aggressor and either no jurisdictional filter or approval by a
body other than the Security Council, such as the General Assembly,
International Court of Justice, or an ICC pre-trial chamber. “Combination
4” would not require acceptance of jurisdiction by the alleged aggressor
state, and, like “Combination 3” either no jurisdictional filter or
approval by a non-Security Council body.

While taking no position on the definitional aspects of
aggression, from the start of the preparatory committee negotiations in 1996
Human Rights Watch has opposed Security Council exclusive control of the
court’s jurisdiction over any crime, including the crime of aggression.
We believed then—and believe now—that control over the
court’s jurisdiction by a political body would undermine the ICC’s
judicial independence.

Human Rights Watch remains deeply opposed
to any proposal that would make jurisdiction subject to approval by political
bodies, including the Security Council and the General Assembly. Making the
Security Council or the General Assembly the “gatekeeper” to the
court’s exercise of jurisdiction would subordinate the court to the
imperatives of politicized decision-making.

While such politicization is less a
risk where the filter rests with the International Court of Justice (ICJ), the
rationale for relying on the decision-making powers of an entirely separate
judicial institution is unclear. While the work of the ICJ may contribute
to an emerging norm of state conduct with regards to aggression, it does
not clarify a definition for an individual crime of aggression that
meets the requirements of the principle of legality. Any of
these three approaches—the Security Council, the General Assembly or the
ICJ— would undercut the court’s independence, as well as its
legitimacy, authority, and credibility. On this basis, Human Rights Watch urges
states to reject any jurisdictional regime that requires approval by any entity
external to the ICC itself.

We further note that in Combinations
3 and 4, the Special Working Group also posited pre-trial chamber authorization
as an alternative jurisdictional filter. While requiring such authorization is
less problematic than a determination by an institution external to the ICC,
this proposal would nonetheless depart from the jurisdictional regime codified
in the Rome Statute. That statutory framework only requires pre-trial
authorization where the prosecutor seeks to open a propio motu
investigation under article 15. Such authorization is not presently required
where a situation is referred to the ICC prosecutor by either the Security
Council or a state. In our view, there is no reason to depart from this regime
for the crime of aggression. However, if there must be a jurisdictional filter,
a pre-trial chamber mechanism is the only option that would not threaten the
court’s independence and credibility.

2. Potential negative consequences of adopting the
crime of aggression

On the basis of close observation of the court in situation
countries, Human Rights Watch has concerns about adopting the crime of
aggression, regardless of the jurisdictional filter. We fear that inclusion of
a definition and jurisdictional filter could diminish the court’s
role—and the perceptions of that role—as an impartial judicial
arbiter of international criminal law.

Taking up prosecutions of aggression could link the ICC to
highly politicized disputes, such as border incursions, territorial disputes,
and secession movements supported by external state actors. Inserting the court
into these disputes may well give rise to perceptions of political bias and
instrumentalization—even if such perceptions are wholly unfounded. This,
in turn, could damage the interested public’s trust in the court’s
legitimacy and ability to address genocide, war crimes, and crimes against
humanity.

The court’s work and credibility could also be damaged
in situations where it does not take up an aggression prosecution. ICC
jurisdiction over the crime of aggression would be eagerly welcomed by many.
But especially with a complex jurisdictional mechanism, the operation of the
court’s jurisdiction over the crime would be harder for the interested
public to comprehend, especially in the country situations most affected by the
alleged crime. This would also be true of the constraints on the court’s
ability to investigate aggression-like incidents given its limited resources
and wide mandate. Thus, situations could arise in which affected communities
would have intense expectations for justice, but the ICC would be unable to act
due to jurisdictional or resource restrictions. This is already a problem for
the court in pursuing the core crimes already operational under its
jurisdiction.[270]

When it comes to the crime of aggression, then, the dangers
of inaction are much like those of action: disappointing expectations, leaving
communities feeling abandoned and disinclined to trust the other work of the
court. Moreover, there is a further risk to the court should it decline for
whatever reason to take up a particular allegation of aggression: opportunistic
and unscrupulous political leaders, seeking to advance their own national
agendas, could exploit national dissatisfaction and undercut the court’s
credibility both domestically and internationally.

C. Discussions at Kampala

Human Rights Watch believes that the decision on whether or
not to define and operationalize jurisdiction over the crime of aggression
should be taken on the merits, not on the basis of its potential effect on the
willingness of non-states parties to support or join the court’s treaty.
Some non-states parties have insisted that failure to adopt aggression will
push them away from the court; others have stated that the likelihood of their
joining or supporting the ICC is contingent upon the rejection of the crime of
aggression. Neither assertion should sway states parties from careful
consideration of the impact of the crime of aggression on the future of the
court. Broader ratification and accession is a certainly an important long-term
goal, but it is not a constitutive principle of the Rome Statute.

The decision, we believe, should be rooted in considerations
of strengthening international criminal law and building a strong judicial institution
that can lead the fight against impunity for the worst abuses against
civilians. We urge states parties to conduct their discussions in a way to
minimize the potential for divisiveness that would otherwise compromise the
robust support the court needs from the community of states that helped create
it.

Acknowledgments

This report was prepared by Param-Preet Singh and Elizabeth
Evenson, both counsel in the International Justice Program of Human Rights
Watch; Sara Darehshori, senior counsel in the International Justice Program;
Michael Ybarra, fellow in the International Justice Program; and Richard
Dicker, director of the International Justice Program. The report draws heavily
on past reporting by Human Rights Watch and includes excerpts from two recent
reports, Selling Justice Short: Why Accountability Matters for Peace
(July 2009) and Courting History: The Landmark International Criminal
Court’s First Years (July 2008). James Ross, legal and policy
director, provided legal review, and Joe Saunders, deputy program director in
the Program Office, provided program review. Linda Louie, associate for the
International Justice Program, provided production assistance, and Grace Choi,
Anna Lopriore, and Fitzroy Hepkins prepared the report for publication. Doreen
Chen, Nurit Inbal, David Mandel-Anthony, and Okeoma Moronu provided invaluable
assistance with footnotes and proofreading.

[1]
Cooperation by other actors, including non-states parties, the United Nations,
and other intergovernmental bodies, is also essential. See our full discussion
in Human Rights Watch, Courting History: The Landmark International Criminal
Court’s First Years, July 2008,http://www.hrw.org/en/reports/2008/07/10/courting-history-0,
part VIII. We focus here primarily on cooperation by states parties,
including the need for states parties to mainstream support for the ICC in the
United Nations and regional organizations.

[2]
Rome Statute article 86 provides that “States Parties shall, in
accordance with the provisions of this Statute, cooperate fully with the Court
in its investigation and prosecution of the crimes within the jurisdiction of
the Court.” Rome Statute of the International
Criminal Court (“Rome Statute”), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 86.

[3]See, for example, the lists of “forms of
mandatory cooperation and assistance” and “contractual forms of
cooperation and assistance” included in the appendices to ICC, “Report
of the Court on international cooperation and assistance” (“Court
Cooperation Report 2009”), annex I to Assembly of States Parties (ASP) ,“Report
of the Bureau on cooperation” (“Bureau Cooperation Report
2009”),ICC-ASP/8/44, November 15, 2009, http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/ICC-ASP-8-44-ENG.pdf
(accessed April 20, 2010).

[4]
See ICC, “Court Cooperation Report 2009,” paras. 8, 40, 92. States
parties have not been as forthcoming as they could be in reporting on their
cooperation or providing the ASP with information that could help to facilitate
increased levels of cooperation. In 2006, the ASP adopted a “Plan of
Action for the Universality and Full Implementation of the Rome Statute.”
Pursuant to that plan, in each subsequent year, the ASP secretariat has
requested states parties to provide information under the plan so as to
facilitate exchange of information and assistance between states parties. The
information requested is relevant to cooperation, such as bilateral cooperation
agreements with the court and implementation of Part IX of the Rome Statute on
cooperation. See, for example, ASP Secretariat, Note vebale, July 25, 2007 http://www.icc-cpi.int/Menus/ASP/Sessions/Plan+of+Action/2007+_+Plan+of+Action.htm
(accessed April 22, 2010). But the secretariat’s requests (which include
a questionnaire on implementing legislation prepared by the court) have met
with only a limited response each year. The 2009 questionnaire has been
reissued in advance of the review conference in the hopes of generating
additional responses. In addition, the Bureau focal point on cooperation
(discussed further below) asked each state party to designate a focal point
responsible for cooperation within their diplomatic missions in New York, Brussels, or The Hague, but over 40 states parties failed to respond to this
request. ASP, “Bureau Cooperation Report
2009,” para. 6(a).

[11]
See, for example, Human Rights Watch, Memorandum for the Fifth Session of
the Assembly of States Parties to the ICC, November 2006,
http://www.hrw.org/backgrounder/ij/asp1106/asp1106web.pdf.

[12]
See ASP, “Proceedings,” in Official Records of the Assembly of
States Parties to the Rome Statute of the International Criminal Court, Fourth
session, The Hague, November 28 - December 3, 2005, ICC-ASP/4/32, Part I,
http://www.icc-cpi.int/library/asp/Part_I_-_Proceedings.pdf (accessed May 13,
2008), para. 21. As part of their functioning, these groups meet regularly;
interact with the ICC, nongovernmental organizations and relevant experts;
produce reports to facilitate the ASP’s work; and assist in preparation
for the ASP session. They also appoint focal points and sub-groups to work on
specific issues, such as the court’s strategic plan, budget, and
permanent premises.

[13]
See, ASP, “Cooperation,” Resolution ICC-ASP/8/Res.2, November 26,
2009, in Official Records of the Assembly of States Parties to the Rome
Statute of the International Criminal Court, Eighth Session, The Hague,
November 18-26, 2009, ICC-ASP/8/20, Part II, http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/OR/OR-ASP8-Vol.I-ENG.Part.II.pdf
(“Eighth ASP Official Records”), pp. 17-19 (“Eighth ASP
Cooperation Resolution”).

[14]
During its fifth session, the ASP appointed facilitators in New York and The Hague who led consultations and prepared a report on cooperation. In New York, the
facilitator was the Dutch legal advisor, while in The Hague, the Danish
ambassador served in this role. The report, which was endorsed by the ASP
Bureau, provides invaluable guidance by identifying a range of steps that
states parties should take to improve cooperation with and support for the ICC.
See ASP, “Strengthening the International Criminal court and the Assembly
of States Parties,” Resolution ICC-ASP/5/Res.3, December 1, 2006, http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-ASP5-Res-03-ENG.pdf
(accessed April 20, 2010); ASP, “Bureau Cooperation Report 2007.”

[18]
Ibid., para. 17. The registry has a pivotal role in the effective functioning
of the court. It is responsible for non-judicial aspects of the administration
and servicing of the court, including with regard to witness protection,
outreach and public information, and facilitating victim participation. It is
headed by the registrar, the principal administrative officer of the court.

[19]Rome Statute, art. 88. See also Human Rights Watch, Making the International Criminal
Court Work: A Handbook for Implementing the Rome Statute, vol. 13, no.
4(G), September 2001, http://www.hrw.org/campaigns/icc/docs/handbook_e.pdf.

[21]
Human Rights Watch interview with ICC state party diplomat, The Hague, March 17, 2008.

[22]
ICC, Cooperation Report to the Bureau of the Assembly of States Parties, March
2007 (copy on file with Human Rights Watch).

[23]
Human Rights Watch separate interviews with several ICC state party diplomats, The Hague, March 17, 2008.

[24]
For example, focal points from European Union (EU) states are part of a group
of national focal points who participate in regularly convened meetings on the
ICC through the Council of the European Union Working Group on International
Law (COJUR).

[29]
These include: the prime minister’s cabinet; the ministries of foreign
affairs, justice, defense, and interior; the federal prosecutor, police, and
correctional units; and the military and civilian intelligence services. Ibid.

[30]
In fact, specific requests go to the international judicial cooperation service
within the Justice Ministry consistent with Belgium’s ICC implementing
law, which appointed the ministry as the contact point for cooperation
requests. Ibid.

[32]
The agreements contain information such as the identity of the national
officials who must be contacted; what information should be provided by the
court; how much time the state has to reply to a request; what happens if the
agreed timeframe is not met; who will bear which costs; and who will give final
approval. Human Rights Watch interview with ICC staff, New York, December 11, 2007.

[33]
While information on transport agreements is not available, the court to date
has been able to conclude only ten witness relocation agreements, two ad hoc
witness relocation agreements for specific cases, one agreement where a state
party agreed to sponsor witness relocation to a third state, and two
enforcement of sentences agreements. ASP, Bureau Cooperation Report 2009,
paras. 64, 90 In addition, the court reports that it has reached advanced
negotiations with three states parties on enforcement of sentences agreements
and is nearing finalization of negotiation of two additional framework
agreements on witness relocation. ICC, “Court Cooperation Report
Update,” paras. 16, 18.

[34]For
example, according to the ASP Bureau’s 2007 report on
cooperation, “[i]n 2001 there was one application for
protection. That number increased to 36 in 2006. The Court has in the
first half of 2007 alone received 25 applications … [E]ach application
for the protection of a witness concerns 5-20 individuals/dependants.”
ASP, “Bureau
Cooperation Report 2007,” para. 46.

[35]
Nevertheless, the investment required is likely less burdensome than some
states appear to perceive it to be: according to court officials, some states
parties have thought witness relocation would involve hundreds of refugees.
Human Rights Watch interview with ICC staff, New York, December 11, 2007. This has not been the case. Witness relocation, especially outside the region where
witnesses live, is generally only pursued as a last resort since moving a
witness to a country with an unfamiliar language and culture is not desirable
for him or her.

[38]
See ASP, “Bureau Cooperation Report 2009,” § D(2)(g). The
proposed review conference resolution on “strengthening the enforcement
of sentences,” originally proposed by Norway, would usefully call on
states to indicate their willingness to accept sentenced persons and would seek
to include within the programs of the World and regional banks, the United
Nations Development Program, and other relevant multilateral and national
agencies assistance to states in the building of prison facilities. See
“Draft resolution on strengthening the enforcement of sentences,”
annex V to ASP, “Review Conference,” Resolution ICC-ASP/8/Res.9, March 25, 2010, http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.9-ENG.pdf
(accessed April 20, 2010). The draft resolution met with consensus during the
ASP’s eighth resumed session and we look forward to its adoption in Kampala.

[39]
Human Rights Watch interview with ICC state party diplomat, The Hague, March 17, 2008.

[43]Ibid., pp. 50-54. See further discussion of the high price
paid in the DRC for impunity in Part XX.

[44]The
EU similarly made cooperation with the ICTY a precondition to accession
negotiations with Croatia, which helped bring about the arrest of Croatian
commander Ante Gotovina in the Canary Islands, Spain, in December 2005.

[47]
See, for example, Report of the U.N. Secretary-General on the Rule of Law and
Transitional Justice in Conflict and Post-Conflict Societies, S/2004/616, August 23, 2004, http://www.un.org/Docs/sc/sgrep04.html (accessed May 5, 2007), para. 2.

[48]
See, for example, the ASP Bureau report’s recommendations 54 and 55 which
state, “As much as possible, the organs of the Court should schedule
their high level visits to New York in such a way as to ensure an equal spread
throughout the year and coincide with the most significant and relevant United
Nations events”; and “High-level Court visitors should continue to
be available in the margins of such visits to brief the Group of Friends of the
International Criminal Court as well as Court membership of regional groups,
including on situations and cases.” ASP, “Bureau Cooperation Report
2007,” recommendations 54, 55.

[49]Prosecutor v. Harun and Kushayb, ICC, Case No.
02/05-01/07, “Public Redacted Version of Prosecution request for a
finding on the non-cooperation of the Government of the Sudan in the case of
The Prosecutor v Ahmad Harun and Ali Kushayb, pursuant to Article 87 of the
Rome Statute,” April 19, 2010, http://www.icc-cpi.int/NR/exeres/921C6A9A-8FC2-4866-A36D-7CA4C7D3BB7E.htm
(accessed April 23, 2010).

[50]
During the 62nd Session of the General Assembly’s general
debate, for example, approximately one-third of states parties’
interventions discussed the ICC, with some citing the need for cooperation.
Coalition for the ICC, “Excerpts from the General Debate of the 62nd
Session of the General Assembly, 25 September – 3 October 2007,” http://www.iccnow.org/documents/GeneralDebateExcerpts2007.pdf
(accessed June 6, 2008).

[53]
Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court, http://www.consilium.europa.eu/uedocs/cmsUpload/l_15020030618en00670069.pdf
(accessed on April 28, 2008).

[54]
See Council of the European Union, “The European Union and the
International Criminal Court,” February 2008, http://www.consilium.europa.eu/uedocs/cmsUpload/ICC_internet08.pdf
(accessed May 13, 2008), annex 2 (collecting relevant Council of the European
Union conclusions).

[56]
See, for example, African Union Peace and Security Council, “Communique
of the 142nd Meeting of the Peace and Security Council,” PSC/MIN/Comm
(CXLII), July 21, 2008, http://www.iccnow.org/documents/AU_142-communique-eng.pdf
(accessed November 4, 2009) (expressing the conviction that pre-trial chamber
approval of the al-Bashir warrant application would undermine peace prospects
and requesting deferral of the “process initiated by the ICC” under
article 16 of the Rome Statute).

[57]Assembly
of the African Union, “Decision on the Meeting of African States Parties
to the Rome Statute of the International Criminal Court (ICC),”
Assembly/AU/Dec. 245 (XIII) Rev. 1, July 3, 2009,http://www.africa-union.org/root/au/Conferences/2009/july/summit/decisions/ASSEMBLY%20AU%20DEC%20243%20-%20267%20(XIII)%20_E.PDF
(accessed July 29, 2009), para. 10. The stated basis in the AU Decision for
withholding cooperation is the UN Security Council’s lack of response to
the AU’s request to suspend the ICC prosecution of President al-Bashir
according to article 16 of the Rome Statute. The AU Decision is, therefore,
premised on dissatisfaction with the actions of a political body, the UN
Security Council, rather than with the ICC. In this context, we note that on July 31, 2008, the UN Security Council acknowledged the AU’s request for the
suspension of the ICC’s case against al-Bashir in resolution 1828. The
request for additional or different responses by the UN Security Council is a
matter that should be addressed directly with the council under its rules of
procedure and has no link to cooperation with the ICC.

[61] See
“African Civil Society Calls on Governments to Maintain Firm Commitment
to ICC,” Coalition for the International Criminal Court news release,
June 8, 2009, http://www.iccnow.org/documents/Uganda_May_2009_regional_strategy_meeting_PR.pdf (accessed October 30, 2009); “Statement by
representatives of African civil society and the legal profession on the
implications of the African Union’s recent decisions on universal
jurisdiction and the work of the International Criminal Court in Africa, Cape
Town,” May 11, 2009 (copy on file with Human Rights Watch);
“African Civic Leaders Statement on the situation in Sudan,” June
26, 2009 (copy on file with Human Rights Watch).

[62] See
“Africa: Reaffirm Support for International Criminal Court,” Human
Rights Watch news release, July 30, 2009 http://www.hrw.org/en/news/2009/07/30/africa-reaffirm-support-international-criminal-court (announcing statement). The statement was originally
issued on July 30, 2009; as of August 19, 2009, the statement had 164
signatories.

[63] See
African Union, Report of the Meeting of African State Parties to the Rome
Statute of the International Criminal Court, Addis Ababa, June 8-9, 2009, MinICC/Rpt (copy on file with Human Rights Watch).

[64]
During the eighth ASP session, South Africa, on behalf of the African Union,
proposed amending the Rome Statute to extend the article 16 role of the UN
Security Council to the UN General Assembly. See ASP, “Report of the
Working Group on the Review Conference,” in Eighth ASP Official
Records, annex II, http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/OR/OR-ASP8-Vol.I-ENG.Annexes.pdf
(accessed April 22, 2010) (“Review Conference Working Group
Report”). This was the only amendment proposal to which the African Union
members agreed during the review conference preparatory meeting convened in
November 2009 pursuant to the Sirte decision. The proposal may reflect
continuing dissatisfaction by some within the African Union with the UN
Security Council’s inaction on its ongoing call to defer the al-Bashir
case, discussed above. While this amendment, if adopted, would have raised
serious concerns about the politicization of the court, the proposal was
supported by only two states, Namibia and Senegal, during the Assembly session.
As a result of prior decisions with the ASP that only those amendments enjoying
consensus would be forward for the review conference’s consideration, it
was not forwarded to Kampala. Instead, it will be considered alongside other
amendments as to which there was not sufficient consensus in a newly created
ASP working group on amendments. A proposal by South Africa, again on behalf of
the African Union and pursuant to a decision taken during the November review
conference preparatory meeting, that the prosecutor be directed by the Assembly
to revise his policies to take considerations of peace into account did not
prove wholly acceptable to the Assembly and compromise language was found. See
African Union, Report of the Ministerial Meeting on the Rome Statute of the
International Criminal Court (ICC), EX.CL/568 (XVI), Addis Ababa, January
25-29, 2010, http://www.ccpau.org/Portals/0/xyiznwsk/Rep.%20Conf%20ICC%20Ministerial.pdf
(accessed April 20, 2010) (“Report of the Ministerial Meeting”).

[65]See, for example, “ICC First Vice-President begins
her official visit to African States Parties,” ICC press release, June
26, 2009, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/pr426 (accessed October 30, 2009); “ICC President Song
starts his first official visit to African States Parties,” ICC press
release, June 1, 2009, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/icc%20president%20song%20starts%20his%20first%20official%20visit%20to%20african%20states%20parties (accessed October 30, 2009).

[66]
Assembly of the African Union, “Decision on the Report of the Second
Meeting of States Parties to the Rome Statute on the International Criminal
Court (ICC),” Assembly/AU/Dec.270(XIV), February 2, 2010, http://www.ccpau.org/Portals/0/xyiznwsk/Assembly%20AU%20Dec.270(XIV).pdf
(accessed April 20, 2010), para. 12. The
decision did, however, restate the African Union’s call for a UN Security
Council deferral of the case against President al-Bashir under article 16 of
the Rome Statute. Ibid., para. 10. In addition, it requested that African
states parties discuss obligations under the Rome Statute on immunity of
non-states parties officials in relation to articles 27 and 98 during
stocktaking on cooperation at the review conference. Ibid., para 8. Constructive
discussion that can help to advance state practice and is welcome, but we note
that there may be limited further understanding that can be reached given that
the issue is ultimately a matter of interpretation by the ICC’s judges.

[70]
See ASP, “Report of the Court on the establishment of an office for the
International Criminal Court at the African Union Headquarters in Addis
Ababa,” November 4 2009, http://www.icc-cpi.int/NR/rdonlyres/B55EF784-86BC-4169-B5C6-92AF5149C69C/0/ICCASP835ENG.pdf
(accessed April 22, 2010), paras. 3-5.

[73]One of the assumptions
underlying the complementarity principle is that states are generally better
positioned, because of resources and access to key evidence and witnesses, to
carry out proceedings efficiently and effectively. OTP, “Informal expert
paper: The Principle of Complementarity in Practice,” 2003, http://www.icc-cpi.int/iccdocs/doc/doc656350.PDF,
p. 3 (“Informal Expert Paper”). Vesting ICC states parties with the
obligation to address allegations of war crimes, crimes against humanity and
genocide was considered essential to protect national sovereignty in the
negotiation of the Rome Statute. John Holmes, “Complementarity: National
Courts versus the ICC,” in Antonio Cassese et al., eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I (Oxford: Oxford University Press, 2002), p. 668. See also Sharon Williams, “Article
17: Issues of Admissibility,” in Otto Triffterer, ed., Commentary on
the Rome Statute of the International Criminal Court (Baden-Baden: Nomos
Verlagsgesellschaft Baden-Baden, 1999), p. 384.

[76]However, there may be
projects identified at the regional level aimed at addressing accountability
efforts in ICC countries under investigation or analysis, such as with respect
to witness relocation. See Silvana Arbia, “The Three Year Plans &
Strategies of the Registry in Respect of Complementarity for an Effective Rome
Statute System of International Criminal Justice,” Consultative
Conference on International Criminal Justice, 2009 conference, http://www.internationalcriminaljustice.net/experience/papers/session2.pdf
(accessed April 23, 2010), p. 5 (“Registry Discussion Paper”).

[78]The program was born out
of a need to reinforce grassroots reconciliation efforts between Hema and Lendu
communities weary of inter-ethnic conflict. It was also a logical consequence
of the mandate of the “Interim Emergency Multinational Force”
(“the Artemis force”) deployed in Bunia by the European Union
between June and September 2003 with the authorization of the UN Security
Council. Under their normal policing activities, the troops of the Artemis
force – and subsequently those of the United Nations Mission to the Congo
(MONUC) – arrested, among others, leaders of armed groups responsible for
the crimes that characterized the conflict in Ituri. However, in the absence of
courts and judges, suspects were sometimes released immediately, damaging in
the eyes of the local population the credibility of the Artemis force and MONUC
to restore security and maintain peace. See Human Rights Watch, Democratic
Republic of Congo: Confronting Impunity, January 2004, http://www.hrw.org/en/reports/2004/02/02/democratic-republic-congo-confronting-impunity;
Human Rights Watch, Making Justice Work: Restoration of the Legal System in
Ituri, DRC, September 2004, http://www.hrw.org/en/reports/2004/09/01/making-justice-work-restoration-legal-system-ituri-drc.

[80]For instance, Congolese
law gives the Minister of Justice the power to issue an
“injunction” to the Chief Prosecutor of the DRC to initiate a trial
and prosecute certain crimes before any jurisdiction (Article 12 of the Code of
Judicial Organization and Competence). The power of injunction is usually
exercised by the Minister of Justice to reflect and apply the government’s
criminal policy. The minister of justice could have used his power of
injunction to urge the prosecutor to prosecute serious crimes in cases which he
has identified as being of special interest, and, indeed, in a Human Rights
Watch telephone interview on July 2, 2004, the Minister of Justice told Human
Rights Watch that he intended to exercise this power in a more positive way, to
reflect a firm government policy against impunity in Ituri.

[81]This
draft law, prepared by the Standing Committee on Reform of Congolese Law in
2002, was submitted to the Minister of Justice in April 2003. Even in the
absence of a law to implement the ICC statute, the prosecutor could have
applied the ICC Statute directly since it was part of internal Congolese law
under the transitional constitution. Human Rights Watch, Making Justice Work,
p.6. Since then, jurisdiction for trying war crimes, crimes against humanity
and genocide cases, has shifted to the military courts (even though these
crimes are not well defined in the current military penal code). Draft
legislation to implement the Rome Statute of the International Criminal Court into
Congolese domestic law remains pending in 2010; once approved, the jurisdiction
for such crimes will move to the civilian courts.

[82]Since
the beginning of 2003, MONUC has carried out several investigative missions
that enabled it to collect information about serious crimes committed during
massacres in Ituri. However MONUC did not share with the prosecutor information
it had about serious crimes involving these leaders.Human Rights Watch, Making Justice Work,
p. 6.

[83]
The case against Mathieu Ngudjolo, former chief of staff of the Front for
National Integration (FNI) illustrates the consequences of failing to
adequately support accountability efforts. Ndudjolo was prosecuted, among other
charges, for the kidnapping and murder in September 2003 of a UPC sympathizer.
Ultimately, the prosecutor was only able to produce one prosecution witness;
the other witnesses who made statements during the investigation withdrew them
and refused to appear in court due to pressure from FNI leaders. The sole
prosecution witnesses only testified at the court’s first hearing and
refused to attend subsequent sessions, citing increasingly insistent threats by
FNI supporters. The prosecution had nothing left to support its case, and
Ngudjolo was acquitted in June 2004 due to lack of evidence. Human Rights
Watch, Making Justice Work, p. 8. Justice was delayed until 2008, when
Ngudjolo was arrested based on an ICC warrant on charges of war crimes and
crimes against humanity. His trial is currently underway in The Hague.

[88]
The Bosnian War Crimes Chamber offers a positive example of how international
assistance can be realized in a domestic judicial institution. Human Rights
Watch, Looking for Justice: The War Crimes Chamber in Bosnia and Herzegovina,
February 7, 2006, http://www.hrw.org/en/reports/2006/02/07/looking-justice;
Human Rights Watch, Narrowing the Impunity Gap: Trials Before Bosnia’s
War Crimes Chamber, February 11, 2007, http://www.hrw.org/en/node/11032/section/1.

[89] Human
Rights Watch, A Mixed Chamber for Congo?, October 5, 2009,http://www.hrw.org/en/news/2009/11/19/mixed-chamber-congo; Letter from Human Rights
Watch to Kenyan Ministers, “Draft Statute for the Establishment of a
Special Tribunal,” December 22, 2008, http://www.hrw.org/en/news/2008/12/22/letter-kenyan-ministers-establishment-special-tribunal.
The principal judge of Uganda has suggested that the special division of the
Ugandan high court established to try serious international crimes would also
benefit from the inclusion of international judges. See Taddeo Bwambale,
“Uganda: Foreign Judges to be on War Crimes Court,” All Africa, January 26, 2010, http://allafrica.com/stories/printable/201001270029.html (accessed April 23, 2010).

[92]This
assistance extends to the military courts in trying sexual violence crimes.
Further study of the factors contributing to what have been some successful
prosecutions of serious international crimes in Congolese military
courts—and the role of international actors, whether in providing
technical assistance or political pressure—could yield important insights
to be applied to assistance through positive complementarity efforts to
civilian judicial systems in the DRC and elsewhere. Still, while Congolese
military courts have in recent years demonstrated progress in applying the Rome
Statute, the military justice system remains a weak institution (to date,
almost all prosecutions have focused on mid- and lower-level defendants; there
have been very few cases against high-level military and government officials).
Serious judicial reform is required.

[94]
On October 25, 2002, the Central African Republic’s former army chief of
staff, Gen. Francois Bozize, launched a rebel offensive against then-President
Ange-Felix Patasse. Unable to rely on his army, which had been weakened by
several mutinies and military coups, Patasse obtained support from forces of
Jean-Pierre Bemba’s Congo Liberation Movement and a mostly Chadian
mercenary force. Both groups committed widespread atrocities, including
massacres and rapes, during 2002 and 2003. Fighting continued sporadically from
October 2002 to March 15, 2003, when Bozize finally seized power. Human Rights
Watch, Selling Justice Short: Why Accountability Matters for Peace, July
2009, http://www.hrw.org/en/reports/2009/07/07/selling-justice-short-0, p. 99.

[97]
Ibid. See also United Nations Peacebuilding Support Office, Mapping of
Resources and Gaps for Peacebuilding in the Central African Republic, December 22, 2008, p. 10, http://www.un.org/peace/peacebuilding/Country-Specific%20Configurations/Central%20African%20Republic/Mapping%20CAR%20221208.pdf
(accessed April 23, 2010).

[101]
UN Peacebuilding Commission, Central African Republic Configuration, Strategic
framework for peacebuilding in the Central African Republic 2009-2011, p.
8-9, 20-27. It should be noted that the Peacebuilding Commission called for
prosecutions of those responsible for crimes against women and children. Ibid.,
pp. 9, 25. While this is certainly a step in the right direction, and while
humanitarian and human rights law do include prohibitions on crimes against
women and children, it is accountability for high-level perpetrators of all
Rome Statute crimes that would make it “possible to re-establish
confidence in the justice system and reduce frustration.” Ibid., p. 9.
Significantly, the most recent review of the Commission’s strategic
framework contains no mention of efforts to combat impunity for serious
international crimes, including crimes against women and children.

[103]International
Criminal Court, Office of Public Counsel for Victims, Response by the Legal
Representative of Victims to the Defence’s Challenge on Admissibility of
the Case pursuant to articles 17 and 19(2)(a) of the Rome Statute,
ICC-01/05-01/08, April 1, 2010.

[104]
CAR Cour de Cassation, decision of April 11, 2006 (“[T]he inability of
the Central African justice system to carry out effective investigations and
prosecutions is clear . . . the ICC offers the possibility of finding and
punishing the perpetrators of the most serious crimes which affect the
international community as a whole, in the place of States which are incapable
of carrying out effective investigations and prosecutions.”), quoted in
Human Rights Watch, State
of Anarchy, p. 104. When Human Rights Watch visited CAR in 2007, the
government had not investigated, prosecuted, punished, or even publicly reprimanded
a single military officer for abuses committed against civilians. Ibid., p. 12.

[107]Of
course, the court’s involvement in active complementarity efforts should
be carefully managed to avoid any potential conflicts that could arise in an
admissibility challenge under article 17 of the Rome Statute. Nor should the
court’s potential role in directing positive complementarity efforts
replace the need to consult and collaborate with national authorities to direct
development assistance appropriately.

[110]Ibid., p. 8. See further
discussion of the role of the ICC’s field offices in maximizing the
court’s impact in affected communities and the resources necessary to
support strong field engagement, in Chapter V.C.5.

[113]Ibid.,
para. 17(a). Indeed, our research confirms there is a real demand for such
training. For instance, a local prosecutor in Ituri told Human Rights Watch
researchers that he would like to discuss with ICC prosecutors how to pursue
the recruitment of child soldiers as a war crime given that this widespread
practice it is not penalized under Congolese law. Human Rights Watch interview
with military prosecutor, Bunia, April 30, 2007; Human Rights Watch interview with military judge, Bunia, May 1, 2007.

[118]Human Rights Watch telephone
interview with ICTY OTP staff, The Hague, April 7, 2010. This unit also handles
requests for assistance from countries outside of the region that are carrying
out investigations or trying cases over which that country has jurisdiction.

[120]“Office
of the Prosecutor of the ICTY Welcomes Liaison Prosecutors from Bosnia and
Herzegovina, Croatia and Serbia to the Tribunal,” ICTY press release,
July 1, 2009, http://www.icty.org/sid/10176 (accessed April 23, 2010).

[122]As
outlined by the OTP, demonstrating unwillingness may be technically difficult,
likely involving inferences and circumstantial evidence, and politically
sensitive, as it may amount to an accusation against authorities. See OTP,
Informal Expert Paper, p. 15.

[124]Efforts by non-states
parties are also important, as evidenced by the US government’s recent
statements pressing the Congolese government to arrest ICC suspect Bosco
Ntaganda and surrender him to The Hague. See, for example, Hereward
Holland, “U.S. says Congo should arrest indicted ex-rebel,”
Reuters, November 10, 2009,
http://www.reuters.com/article/latestCrisis/idUSLA605813 (accessed April 23, 2010).

[125]For
instance, the UN Security Council’s recognition that the
“strengthening of national judicial systems is crucially important to the
rule of law in general” in the context of implementing the completion
strategies of the international criminal tribunals for the former Yugoslavia
and Rwanda helped spur efforts to strengthen national prosecutions in Serbia,
Croatia, Bosnia, and Rwanda. United Nations Security Council, Resolution 1503
(2003), S/RES/1503, http://daccessdds.un/org/doc/UNDOC/GEN/N03/481/70/PDF/N0348170.pdf?OpenElement
(accessed May 26, 2009), preamble. Human Rights Watch, Selling Justice
Short: Why Accountability Matters for Peace, July 2009, http://www.hrw.org/en/reports/2009/07/07/selling-justice-short,
pp. 94-100.

[127]This
would have to be handled sensitively. In some situations, providing assistance openly
to local civil society actors or expecting robust civil society engagement is
not feasible because of underlying security concerns.

[129]
See Human Rights Watch, Courting History: The Landmark International
Criminal Court’s First Years, July 2008, http://www.hrw.org/reports/2008/icc0708.

[130]
ASP, "Report of the Court on the strategy in relation to victims,"
ICC-ASP/8/45, November 10 2009,
http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/ICC-ASP-8-45-ENG.pdf (accessed
April 16, 2010) (“2009 Victim Strategy”).

[131]
ASP, “Report of the Bureau on stocktaking: The impact of the Rome Statute
system on victims and affected communities,” ICC-ASP/8/49, March 18,
2010, http://www.icc-cpi.int/iccdocs/asp_docs/ASP8R/ICC-ASP-8-49-ENG.pdf
(accessed May 5 2010), para. 3.

[136]
President of the International Criminal Tribunal for the former Yugoslavia,
Sixth Annual Report of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia Since 1991, para. 48, delivered
to the Security Council and General Assembly, U.N. Doc. A/54/187-S/1999/846
(August 25, 1999), available at http://un.org/icty/rappannu-e/1999/index.htm.

[139]
These audiovisual materials can be viewed by the general public through the
court’s newly launched YouTube channel,
http://www.youtube.com/IntlCriminalCourt. The court’s programs and
summaries span all of the situations under investigation and have been prepared
for pre-trial proceedings and activities in addition to trials. For more
information about the court’s outreach activities in connection with its
first trial activities, see ICC, “Outreach Report 2009,” pp.27-42.

[141]
See “The role of effective communications in fulfilling the ICC’s
mandate: challenges, achievements, and the way ahead,” Sonia Robla,
Supranational Criminal Law Lecture Series, Grotius Centre for International
Legal Studies, March 17, 2010, unpublished prepared remarks on file with Human
Rights Watch, p. 2.

[142]
ICC, “Outreach Report 2009,” p. 59. A late start in the Central
African Republic can be explained partly by the fact that PIDS only received
funds to hire an outreach coordinator for the Bangui office following the ASP
session in December 2007. See Human Rights Watch, Courting History, p.
130.

[146]“Positive
complementarity” refers to strengthening national capacity to prosecute
serious international crimes through assistance by states, intergovernmental
organizations, and the ICC. See Part IV.B.2 for a discussion of steps that ICC
staff can take to catalyze the strengthening of national capacity in a number
of areas. It is of course very early for the court to focus on legacy efforts,
and there is still much to be done to make its primary operational phase more
effective. Nevertheless, over the longer term, field-based staff will be in the
strongest position to undertake legacy efforts, such as through targeted
interaction, outreach, and trainings with those in the domestic justice sector.

[147]
See generally ASP, “Report of the Court on the enhancement of the Registry’s
field operations for 2010,” ICC-ASP/8/33, http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/ICC-ASP-8-33-ENG.pdf
(accessed April 22, 2010).

[149]Prof.
J.A. Ayua, solicitor general of the Federal Republic of Nigeria and Permanent
Secretary, “Nigeria Statement on behalf of the African states parties to
The Rome Statute of the ICC,” Fourth Session of the ASP, The Hague,
December 3, 2005,
http://www.iccnow.org/documents/NigeriaAfricanSPs_GeneralDebate_3Dec05.pdf
(accessed April 22, 2010). See also Sabelo Sivuyile Maqungo, “Statement
on behalf of African Member States to the International Criminal Court Statute
before the General Assembly,” New York, October 9, 2006, http://www.southafrica-newyork.net/pmun/view_speech.php?speech=271690
(accessed April 16, 2010).

[156]
For a discussion of the ICTR’s failure to prosecute the RPF, see Leslie
Haskell and Lars Waldorf, “The ICTR’s Impunity Gap: Causes and
Consequences,” unpublished manuscript on file with Human Rights Watch.

[158]
Office of the Prosecutor, ICC, “Criteria for Selection of Situations and
Cases,” draft policy paper on file with Human Rights Watch, June 2006,
pp. 12-13.

[159]
During the course of the conflict, ethnic groups like the Nande, Bira, and
Alur, previously not associated with either of the contenders, were forced to
choose sides. See Human Rights Watch, Ituri – Covered in Blood:
Ethnically Targeted Violence in Northeastern DR Congo, vol. 15, no. 11(A),
July 2003, http://hrw.org/reports/2003/ituri0703, p. 14 (“Covered in
Blood”).

[160]
Human Rights Watch group interview with Hema community leaders, Bunia, May 2, 2007, and separate interviews with Hema community leader, Bunia, May 8, 2007, and Hema intellectual, Goma, May 9, 2007.

[162]
For example, the ICC prosecutor submitted a confidential list of possible
suspects to the pre-trial chamber, listing names of senior political and
business leaders affiliated with both the Party of National Unity (PNU) and the
Orange Democratic Movement (ODM). In his subsequent press statement following
the pre-trial chamber’s authorization of a Kenya investigation, the
prosecutor indicated that his office plans to finalize investigations within
2010 and to bring at least two cases against one to two persons in each case.
This suggests, evidence permitting, that his office plans investigations
against PNU and ODM leaders at the same time. See Transcript of statement given
during news conference by the ICC prosecutor, Luis Moreno-Ocampo, The Hague,
April 1, 2010, on file with Human Rights Watch.

[164]
Human Rights Watch separate interviews with representatives of local
nongovernmental organizations, international observers, and local journalists,
Bunia, May 1-3, 5, and 7, 2007

[165]
We note the February 2007 public letter by Floribert Njabu, the president of
the Lendu-based FNI, where he implicated senior Congolese government officials.
Copy on file with Human Rights Watch.

[166]
Human Rights Watch, Covered in Blood; Human Rights Watch, The
Curse of Gold: Democratic Republic of Congo, June 2005,
http://www.hrw.org/reports/2005/drc0505/; Letter from the U.N. Secretary
General to the President of the Security Council, “Special Report on the
Events in Ituri, January 2002-December 2003,” July 16, 2004,
http://documents-dds-ny.un.org/doc/UNDOC/GEN/N04/430/63/img/N0443063.pdf?OpenElement
(accessed June 2, 2008), paras. 68-70.

[171]Laura Davis
and Priscilla Hayner, International Center for Transitional Justice,
“Difficult Peace, Limited Justice: Ten Years of Peacemaking in the
DRC,” March 2009, http://www.ictj.org/static/Africa/DRC/ICTJDavisHayner_DRC_DifficultPeace_pa2009.pdf,
p. 31.

[172]
Ibid. Militia leaders have changed their attitude toward child recruitment in a
way that indicates new awareness that recruitment and utilization of child soldiers
is a crime. In some cases, they have made efforts to cover up use of child
soldiers by telling children to lie about their age or by sending children
away. The awareness of the illegality of use of child soldiers in conflict also
manifested itself in January 2008 peace talks in Goma when language about
demobilization of child soldiers was altered so as not to be seen as an
admission of having child soldiers for fear that it could lead to prosecution.
Although the new awareness has so far resulted in a reluctance to demobilize
children for fear of criminal prosecution and other efforts to conceal their
use (sometimes called the “Lubanga effect”), children’s
rights advocates interviewed by ICTJ concluded the overall effect of the ICC’s
action was positive because of its educational impact. Ibid., p. 32.

[173]
The ICTJ points out that in the year following Lubanga’s March 2006
arrest, recruitment of child soldiers in the DRC decreased by 8 percent. Ibid.,
citing Report of the Secretary-General on Children and Armed Conflict in the
Democratic Republic of the Congo, S/2007/391, June 28, 2007, p. 5. However,
other reports indicate recruitment of child soldiers continued at its normal
rate in 2007. Recruitment declined when it was made clear by the UN and EU that
calculation of demobilization benefits would not include child soldiers. Ibid.

[174]
Annexure to the Agreement on Accountability and Reconciliation between the
Government of the Republic of Uganda and the Lord’s Resistance
Army/Movement on 29th June 2007, Juba, Sudan, February 19, 2008,
paras. 7, 10-14. Notably, while some close to the peace process have argued
that the special division would only try ICC suspects, the agreement does not
suggest any such limitation on its mandate.

[177]Military
courts currently have exclusive jurisdiction over international crimes in the
DRC because legislation implementing the Rome Statute into domestic law and
vesting civilian courts with the jurisdiction to try these crimes has yet to be
passed.

[180]
Decree of the Establishment of a Specialized Prosecution for Crimes Against
Humanity, September 18, 2005. See also Office of the High Commissioner for Human
Rights, "Second Periodic Report of the United Nations High Commissioner
for Human Rights on the Human Rights Situation in Sudan," January 27,
2006, http://www.ohchr.org/documents/countries/sudanjanuary06.pdf (accessed
April 16, 2010), p. 29

[185]Judie
Kaberia, “The Kenya house Speaker recalled Parliament to save a year old
grand coalition gov’t from the brink of collapsing,” Majimbo
Kenya, January 8, 2009, http://majimbokenya.com/home/2009/01/08/the-kenya-house-speaker-recalled-parliament-to-save-a-year-old-grand-coalition-govt-from-the-brink-of-collapsing
(accessed April 16, 2010); and Waki Report, p. 476 (recommending that
“The International Crimes Bill 2008 be fast-tracked for enactment by
Parliament to facilitate investigation and prosecution of crimes against
humanity”).

[186]
Sierra Leone is one example of the failed broad amnesty policies of the past.
Three blanket amnesty provisions in different accords failed to consolidate the
hoped-for peace during its 11-year civil war. Rather than solidify peace,
successive amnesties had the opposite effect. Inclusion of a general amnesty in
the initial peace agreement created the expectation that other agreements would
contain the same provision, thus further emboldening potential rights abusers.
War and war crimes resumed within a short period after each peace agreement had
been reached. As the conflict went on, Human Rights Watch observed an increased
number of serious abuses (including rape, systematic extortion, looting of
villages and torture and summary execution of suspected rebels) by the Civil
Defense Forces, a pro-government militia. In the final 1999 Lome accord, rebel
leaders associated with horrific atrocities were even rewarded with high-level
government positions. The pardons, and ultimately the high government position
for rebel leader Foday Sankoh, showed that combatants would pay no
price—and, indeed, would even be rewarded—for their horrific
crimes. In Angola as well, six successive amnesties failed to end the Angolan
civil war. The consistent failure to address violations of international
humanitarian law undermined attempts to secure peace. Abuses worsened with each
cycle of conflict. See Human Rights Watch,Selling Justice Short, pp.
57-68.

[188]
The Taliban is a movement started by religious students (talibs) from
the Pashtun areas of eastern and southern Afghanistan who were educated in
traditional Islamic schools in Pakistan.

[189]
Agreement on Provisional Arrangements in Afghanistan Pending the
Re-Establishment of Permanent Government Institutions (“Bonn
Agreement”), December 5, 2001,
http://www.un.org/News/dh/latest/afghan/afghan-agree.htm (accessed April 20,
2010); and Joe Havely, “The loya jirga: A very Afghan gathering,” CNN,
June 11, 2002,
http://edition.cnn.com/2002/WORLD/asiapcf/central/06/10/afghan.loyajirga/index.html
(accessed April 20, 2010). The selection process for
the Emergency Loya Jirga which took place in May-June 2002 was conducted in two
stages. During the first stage, candidates were elected in their home districts
by traditional local shuras, or councils; during the second stage, these
candidates attended a regional election where they chose a smaller number of
delegates from among themselves to attend the loya jirga in Kabul. See Procedures
for the Elections of the Members of the Emergency Loya Jirga, UN
Assistance Mission in Afghanistan, http://www.globalpolicy.org/component/content/article/178/33093.html
(accessed April 20, 2010), arts. 6-11.

[190]Procedures for the Elections of the Members of the
Emergency Loya Jirga, art. 14(4).

[197]See,
for example, International Crisis Group (ICG), “Policing in Afghanistan: Still Searching for a Strategy,” December 18, 2008, http://www.ciaonet.org/pbei/icg/0014389/f_0014389_11772.pdf (accessed April 20, 2010) (“there
is a general perception in Afghanistan that lawlessness is on the rise”),
p. 1.

[199]
Afghan Independent Human Rights Commission, “A Call for Justice: A Report
on National Consultations on Transitional Justice in Afghanistan,”
January 2005. According to the survey (4,151 Afghan respondents), 94 percent
found justice for past crimes to be either “very important” (75.9
percent) or “important” (18.5 percent). In addition, almost half
believed that war criminals should be brought to justice “now.”

[200]Resolution
of National Assembly on National Reconciliation and General Amnesty to the
President, No. 44, dated 16/02/1386, published in the official gazette no.
141712, dated 9/9/1387, art. 3(1).

[202]Anita
Powell, “Congo ex-rebels accused of rape and killings,” Associated
Press, May 18, 2009 (citing reports by UN peacekeeper commanders in the DRC
that the former rebels are now committing human rights violations as part of
the Congolese Army).

[203]
Amnesty Decree-Law [Democratic Republic of Congo], Journal Officiel de la RépubliqueDémocratique du Congo¸ No. 03-001, April 15, 2003,
http://www.unhcr.org/refworld/docid/47305aae2.html (accessed April 20, 2010);
Amnesty Law [Democratic Republic of Congo], No. 05/023,December
19, 2005, http://www.unhcr.org/refworld/docid/47305d032.html (accessed April
20, 2010). In May 2009 the DRC parliament passed another amnesty law for armed
groups in North and South Kivu, providing an amnesty similar to that in the
2005 law but extending it to 2009. The law has not yet been signed by President
Joseph Kabila. See “Amnesty law for DR Congo militias,” BBC News
Online, May 7, 2009, http://news.bbc.co.uk/2/hi/africa/8037891.stm
(accessed April 20, 2010).

[204]
Human Rights Watch, Renewed Crisis in North Kivu, vol. 19, no. 17(A),
October 2007, http://www.hrw.org/reports/2007/drc1007/drc1007web.pdf, pp.
75-77. These included Gabriel Amisi, who was promoted to the rank of general,
and Laurent Nkunda, who were responsible for the brutal suppression of a mutiny
in Kisangani where at least 80 people were summarily executed. Human Rights
Watch, Democratic Republic of Congo − War Crimes in Kisangani: The
Response of Rwandan-backed Rebels to the May 2002 Mutiny, vol. 14, no.
6(G), August 2002, http://www.hrw.org/legacy/reports/2002/drc2/DRC0802.pdf, p.
2. The UN later put the figure at 163. See also “Death Toll in Congo
Raid,” New York Times¸ July 17, 2002, http://www.nytimes.com/2002/07/17/world/death-toll-in-congo-raid.html (accessed April 20, 2010).

[206]At this
writing, killings continued in Ituri with at least two militia groups
continuing to fight the Congolese army. There has been considerably less
violence since 2007 than in previous years. See “Top UN official signals
improvement, tough challenges in eastern DR Congo,” United Nations News
Service, April 9, 2009,
http://www.un.org/apps/news/story.asp?NewsID=30442&Cr=democratic&Cr1=congo
(accessed April 20, 2010); Médecins Sans Frontières, “DRC:
LRA Attacks’ ‘Lasting Effect,’” May 18, 2009,
http://www.doctorswithoutborders.org/news/article.cfm?id=3626&cat=voice-from%20the%20field&ref=home-sidebar-right
(accessed April 20, 2010).

[208]
New appointees to the rank of general included Jérôme Kakwavu, the
commander of the People’s Armed Forces of the Congo (FAPC) responsible
for summary executions (including child soldiers who attempted to flee the
ranks), the torture of dozens of civilians, and rape of women and girls in
Ituri; and Floribert Kisembo Bahemuka, one of the UPC commanders responsible in
late 2002 for a campaign of executions and forced disappearances of civilians
in Bunia. “D.R. Congo: Army Should Not Appoint War
Criminals,” Human Rights Watch news release, January 13, 2005, http://www.hrw.org/en/news/2005/01/13/dr-congo-army-should-not-appoint-war-criminals;
Human Rights Watch, The Curse of Gold, http://www.hrw.org/en/node/11733/section/8,
or http://www.anglogoldashanti.com/NR/rdonlyres/CBB6C75C-EE9C-439E-962F-DDB5C52FB968/0/HRWDRCreport.pdf,
pp. 27-34, 84-94.

[209]
See, for example, “DR Congo warlord generals accused,” BBC News
Online, January 14, 2005, http://news.bbc.co.uk/2/hi/africa/4174811.stm
(accessed April 20, 2010) (quoting Information Minister Henri Mova: “Now
we need peace in our country and we decided to appoint them because we
can’t condemn them before judgement.”); Human Rights Watch,
“Army Should Not Appoint War Criminals.”

[210]
The problem seemed to be acknowledged by presidential spokesman Kudura Kasong
who stated, “The big dream of all warlords is to be a general, educated
or not, and this is a big problem.” “DR Congo warlord generals
accused,” BBC News Online,http://news.bbc.co.uk/2/hi/africa/4174811.stm.

[214]Prior
to the unsealing of his arrest warrant, Ntaganda had already been implicated in
brutal human rights abuses, including leading military operations in which
hundreds of civilians were slaughtered on an ethnic basis. Human Rights Watch, Covered
in Blood, http://www.hrw.org/sites/default/files/reports/DRC0703.pdf,pp.
23-27; Human Rights Watch, The Curse of Gold, http://www.hrw.org/en/node/11733/section/6,
or http://www.hrw.org/en/node/11733/section/6, or http://www.anglogoldashanti.com/NR/rdonlyres/CBB6C75C-EE9C-439E-962F-DDB5C52FB968/0/HRWDRCreport.pdf,
pp. 23-34.He
was nonetheless one of the five Ituri leaders who in December 2004 had been
granted positions as generals in the newly integrated Congolese army though he
did not take up the post.

[215]“Congo
conflict: ‘The Terminator’ lives in luxury while UN peacekeepers
look on,” Guardian , February 10, 2010, http://www.guardian.co.uk/world/2010/feb/05/congo-child-soldiers-ntaganda-monuc
(accessed May 5, 2010).; “Congo ex-Rebel ‘working with UN,’”
BBC News Online, April 29, 2009,
http://news.bbc.co.uk/2/hi/africa/8023978.stm (accessed April 20, 2010). The
government’s inclusion of abusive leaders in the army has also set the
stage for further atrocities by its own forces. Human Rights Watch has
documented how since late January 2009 soldiers from the integrated Congolese
armed forces have attacked villages, killing at least 19 civilians and raping
more than 143 women and girls. See “DR Congo: Hold Army to Account for
War Crimes,” Human Rights Watch news release, May 19, 2009, http://www.hrw.org/en/news/2009/05/19/dr-congo-hold-army-account-war-crimes.

[222]Herbert
Okun, “The Role of International Criminal Justice in Peace
Negotiations” (contribution to panel discussion “Future of
International Criminal Justice - Evolving Accountability from Nuremburg to the
International Criminal Court,” October 30, 2006), Penn State
International Law Review, vol. 25, 4 (2007), p. 788.

[228]
United Nations Security Council, “Report of the Secretary-General on the
deployment of the African Union—United Nations Hybrid Operations in
Darfur,” April 14, 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/296/93/PDF/N0929693.pdf?OpenElement
(accessed April 20, 2010). The seriousness of the expulsion of aid agencies
– who employed 40 percent of humanitarian staff working in Darfur at the time and supplied food, water, and medical care to over a million people
– should not be understated. Though emergency measures were undertaken to
avert the worst consequences of the expulsion, including a “combination
of enhanced government capacity, an increase in responsibility assumed by the
remaining humanitarian actors, and new capacities on the ground,” humanitarian
aid has still not recovered nearly one year later to where it was before the
expulsions. See United Nations Security Council, “Report of the Secretary-General
on the deployment of the African Union—United Nations Hybrid Operations
in Darfur,” S/2009/297, June 9, 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/363/65/PDF/N0936365.pdf?OpenElement
(accessed April 20, 2010).

[233]
On November 30, 2008, total UNAMID personnel numbered 15,444. United Nations
Security Council, "Report of the Secretary-General on the deployment of
the African Union—United Nations Hybrid Operations in Darfur," December 12, 2008, S/2008/781, http://www.un.org/ga/search/view_doc.asp?symbol=S/2008/781
(accessed April 20, 2010).

[235]Chief
Prosecutor for the Sierra Leone Special Court David Crane said he had unsealed
the indictment when he learned Taylor would be in Ghana and susceptible to
arrest, stating, “To ensure the legitimacy of these negotiations, it is
imperative that the attendees know they are dealing with an indicted war
criminal.” Felicity Barringer and Somini Sengupta, “War Crimes
Indictment of Liberian President is Disclosed,” New York Times,
June 5, 2003, http://www.nytimes.com/2003/06/05/international/africa/05LIBE.html
(accessed April 19, 2010).

[237]See,
for example, interview with Dapo Oyewole, Center for Democracy and Development,
indicating that the timing of the unsealing of the indictment undermined some
of the proceedings at the peace talks and that the humanitarian situation in Nigeria needed to be addressed first. Jonathan Mann, “Insight,” CNN TV, July
29, 2003, reproduced in writing by CNN Transcripts, http://transcripts.cnn.com/TRANSCRIPTS/0307/29/i_ins.01.html
(accessed April 19, 2010). See also Cobb, “Diplomatic Dismay as Liberia
Rebels Poise for Final Push and Foreigners Flee,” allAfrica.com.

[238]Liberia is also an example of how impunity can lead to more atrocities. In a quick bid to
end the first brutal Liberian civil war and in the face of massive crimes
committed against civilians, UN and West African leaders agreed to a peace plan
that dispensed with justice and rushed an election that installed warlord
Charles Taylor as president in 1997. Not surprisingly, within a short time, the
country was back at war. The ensuing six years of repressive rule by Taylor, and the next war, were characterized by the same egregious abuses against
civilians as the earlier war, and set the country back further. Corinne Dufka,
“Combating War Crimes in Africa,” Human Rights Watch testimony
before the US House International Relations Committee, Africa Subcommittee,
June 25, 2004, http://www.hrw.org/en/news/2004/06/25/combating-war-crimes-africa.

[239]
“The executive secretary [of the Organization of West African States],
Mohamed Ibn Chambas, said that announcing the charges against Charles Taylor as
he was about to open the peace talks had ‘put a damper on the
negotiations’ where President Taylor was making helpful offers
‘opening up tremendous opportunities’ to end the Liberian
conflict.” Virginie Ladisch, “Liberian President Indicted for War
Crimes,” Crimes of War Project news release, June 16, 2003, http://www.crimesofwar.org/print/onnews/liberian-print.html
(accessed April 19, 2010).

[250]
“Justice for a Lawless World? Rights and reconciliation in a new era of
international law,” IRIN In-Depth, July 2006, http://www.irinnews.org/pdf/in-depth/RightsAndReconciliationPart1.pdf
(accessed May 15, 2009), p. 72.

[252]
Father Carlos Rodriguez, a Spanish missionary who was based in northern Uganda
for many years, stated,

Between April and September
[2004] 500 or so combatants have come out of the bush with their guns including
senior officers. So the ICC might not be so discouraging as we thought. Also
those who have come out of the bush have told us that the Sudan Government has
not been giving them anything since January this year. So the ICC may have had
an influence on Sudan. The LRA will only reduce violence out of pressure and Sudan has changed its attitude because of the ICC. They are concerned about being
prosecuted… Now that Sudan is not involved, it forces the LRA to talk
about peace.

Tim Allen, Crisis States Research Center, “War
and Justice in Northern Uganda: An Assessment of the International Criminal
Court’s Intervention,” February 2005,
http://www.crisisstates.com/download/
others/AllenICCReport.pdf (accessed May 15, 2009), p. 58.

[254]
See Elise Keppler, “Managing Peace and Justice in the Juba
Process,” (forthcoming)(manuscript on file with Human Rights Watch). At
the same time, communication between LRA representatives in Juba and the LRA
leadership appeared to be intermittent and suffered from a relative breakdown
in the final months of the talks, raising questions as to the degree of involvement
of the LRA leaders in negotiating the agreements, especially the February 2008 agreement
on accountability. See International Crisis Group, “Northern Uganda: The
Road to Peace, With or Without Kony,” Africa Report No. 146, December
2008, pp. 1-4; and Joe Wacha,“Kony Adds to Peace Process
Turmoil,” Institute for War and Peace Reporting, July 3, 008, http://www.globalpolicy.org/component/content/article/207/39840.html
(accessed September 23,

[259]Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of international Human Rights Law
and Serious Violations of International Humanitarian Law, March 21, 2006,
adopted by the 60th session of the United Nations General Assembly,
A/RES/60/147, paras. 11 (c) and 24.

[260]Set of Principles for the Protection and Promotion of Human
Rights Through Action to Combat Impunity, October 2, 1997, adopted by the UN
Commission on Human Rights, E/CN.4/Sub.2/1997/20/Rev.1, principle 3 (“UN
Principles to Combat Impunity”).

[261]The U.N. Human Rights Committee articulated this principle in the
case Quinteros v. Uruguay, concluding that the mother of a
“disappeared” person was entitled to compensation as a victim, for
the suffering caused by the failure of the state to provide her with
information. Quinteros v. Uruguay, U.N. Human Rights Committee, Case No.
107/1981: “The Committee understands the anguish and stress caused to the
mother by the disappearance of her daughter and by the continuing uncertainty
concerning her fate and whereabouts. The author has the right to know what has
happened to her daughter. In these respects, she too is a victim of the
violations of the Covenant suffered by her daughter in particular, of Article
7.”

[264]
None were convicted solely of the crime of aggression, all having also been
convicted of war crimes, the most well-established offenses, and crimes against
humanity. See Michael J. Glennon, “The Blank-Prose Crime of
Aggression,” Yale Journal of International Law, vol. 35: 71 at p.
74, citing Judgment of 1 October 1946, Trial of the Major War Criminals before
the International Military Tribunal, Nuremberg, Vol. 1, pp. 279-366 (1947).

[265]
Judgment: International Military Tribunal for the Far East, http://www.ibiblio.org/hyperwar/PTO/IMTFE/index.html
(accessed April 29, 2010).

[268]
Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/20/Add.1,
Annex II, http://www.icc-cpi.int/iccdocs/asp_docs/ICC-ASP-7-20-Add.1-SWGCA%20English.pdf
(accessed April 29, 2010).

[269]
The definition of “act of aggression” – referring to a
state’s responsibility – tracks the definition adopted in UN General
Assembly resolution 3314 (XXIX) of 14 December 1974 (Definition of aggression),
http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/3314 (XXIX) (accessed April
29, 2010).